Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”). (b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code. (c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan. (d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G. (e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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. (f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Fidelity National Financial, Inc.), Stock Purchase Agreement (Fidelity National Financial, Inc.)
Employee Matters. (a) Section 3.11 5.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, commitment for the benefit of any employee, former employee, director or former director of any the Company or any of its Subsidiaries Company Subsidiary entered into, maintained or contributed to by any the Company or any of its Subsidiaries Company Subsidiary or to which any the Company or any of its Subsidiaries is obligated to contribute, or Company Subsidiary may have any liability with respect to which any current or former employees or directors of the Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof Subsidiary (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) With respect to each Company Benefit Plan, the Company has made available to Parent true, complete and correct copies of the following (as applicable): (i) Each the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in writing, a written description thereof, (ii) the summary plan description; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter from the IRS; (v) the most recent Form 5500 required to have been filed with the IRS, including all schedules thereto; (vi) any related trust agreements, insurance contracts or documents of any other funding arrangements, (vii) any written communications to or from the IRS or any office or representative of the Department of Labor relating to any compliance issues in respect of any such Company Benefit Plans Plan and (viii) all amendments, modifications or supplements to any such document.
(c) The Company and each Company Subsidiary has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan in compliance with all applicable laws and the terms of each such plan. Each Company Benefit Plan that is intended to be “qualified” within the meaning of under Section 401(a) 401 and/or 409 of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for IRS to such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, effect and, to the knowledge of Sellerthe Company, there is not any reason why any no fact, circumstance or event has occurred or exists since the date of such determination letter should that would reasonably be revoked; (iii) with respect expected to each Company Benefit Plan that is subject to Title IV or Section 302 adversely affect the qualified status of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of any such Company Benefit Plan and (B) Plan. There are no pending or, to the amount of such liabilities as knowledge of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto assets thereof (other than routine claims for benefits). All contributions, premiums and other payments required to be made with respect to any Company Benefit Plan have been made on or before their due dates under applicable law and the terms of such Company Benefit Plan, and with respect to any such contributions, premiums or other payments required to be made with respect to any Company Benefit Plan that are not yet due, to the extent required by GAAP, adequate reserves are reflected on the consolidated balance sheet of the Company included in the Quarterly Report on Form 10-Q for the quarter ended September 30, 2006 (including any notes thereto) or liability therefor was incurred in the ordinary course of business consistent with past practice since September 30, 2006.
(d) With respect to the Company Benefits Plans, neither the Company nor any Company Subsidiary has incurred or reasonably expects to incur, either directly or indirectly (including as a result of an indemnification or joint and several liability obligation), any liability under Title I or IV of ERISA or the penalty, excise tax or joint and several liability provisions of the Code or any foreign law or regulation relating to employee benefit plans, and, to the knowledge of the Company, no event, transaction or condition has occurred, exists or is reasonably expected to occur which could reasonably be expected to result in any material such liability to the Company, any Company Subsidiary or, after the Closing, to Parent. With respect to each Company Benefit Plan which is an “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA): (i) no such plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) or a “multiple employer plan” (within the meaning of Section 413(c) of the Companies Code), and (ii) no “reportable event” (as defined in Section 4043 of ERISA) has occurred with respect to any such plan within the past 12 months.
(e) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of their Subsidiaries andits Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to the knowledge of Sellerbe provided to any such director, there is no existing conditionemployee or independent contractor, situation or set of circumstances which could reasonably be expected to (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(f) No payment made or to be made in respect of any employee or former employee of the Company or any of its Subsidiaries is or will be nondeductible by reason of Section 162(m) of the Code.
(g) Neither the Company nor any of its Subsidiaries has any liability with respect to an obligation to provide welfare benefits, including death or medical benefits (whether or not insured) with respect to any Person beyond their retirement or other termination of service other than coverage mandated by Section 4980B of the Code or state Law. Since December 31, 2006, neither the Company nor any of its Subsidiaries has announced any intent or commitment (whether or not legally binding) to create or implement any additional employee benefit plan or to amend, modify or terminate any broad-based Company Benefit Plan in a claim. manner that materially increases in the Company’s costs.
(h) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, Code and (B)(1) the proposed and final Treasury Regulations regulations issued thereunder and or (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(ci) Neither the Companies Company nor any of their its Subsidiaries will, on and after the Closing, have is a party to or bound by any liabilities labor or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, collective bargaining agreement and there are no representation organizational campaigns, petitions or certification proceedings other unionization activities seeking recognition of a collective bargaining unit with respect to, or petitions seeking a representation proceeding presently pending or threatened otherwise attempting to be brought or filedrepresent, with any of the National Labor Relations Board employees of the Company or any other labor relations tribunal or authorityof its Subsidiaries. There are no material organizing activitieslabor related controversies, strikes, work stoppages, slowdowns, lockoutswalkouts or other work stoppages pending or, arbitrations to the knowledge of the Company, threatened and neither the Company nor any of its Subsidiaries has experienced any such labor related controversy, strike, slowdown, walkout or grievancesother work stoppage within the past three years. Neither the Company nor any of its Subsidiaries is a party to, or other material labor disputes pending otherwise bound by, any consent decree with, or threatened against citation by, any Governmental Entity relating to employees or involving any of the Companies or any of their Subsidiariesemployment practices. Each of the Companies Company and its Subsidiaries is are in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and employment practiceslaws, terms and conditions statutes, orders, rules, regulations, policies or guidelines of any Governmental Entity relating to labor, employment, wages and hours and occupational safety and health.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place termination of employment is outside of the U.S.or similar matters and have not engaged in any unfair labor practices or similar prohibited practices.
Appears in 4 contracts
Samples: Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.), Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.), Transaction Agreement (Compass Bancshares Inc)
Employee Matters. (a) Section 3.11 of The Company has disclosed in the Company Disclosure Schedule sets forth a true, complete and correct list of each SEC Reports any “employee benefit plan” as defined in Section 3(3) of subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether that it maintains for employees.
(b) No director or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option officer or other equity-basedemployee of the Company will become entitled to any retirement, severance, termination, retention, change of control, profit-sharing, fringe or similar benefit or other similar plan, program, agreement enhanced or commitment, whether written accelerated benefit (including any acceleration of vesting) or unwritten, for the benefit lapse of any employee, former employee, director repurchase rights or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or obligations with respect to which any Company employee benefit plan subject to ERISA or other benefit under any of its Subsidiaries has any liability, direct compensation plan or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 arrangement of the Company Disclosure Schedule identifies each Company (each, an “Employee Benefit Plan that Buyers shall assume pursuant to Section 5.8(fPlan”) as a result of the transactions contemplated in this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)Agreement.
(bc) (i) Each No executive officer, to the knowledge of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawCompany, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Serviceis, or has pending an application for such determination from is now reasonably expected to be, in violation of any term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant with the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expiredCompany, and, to the knowledge of Sellerthe Company, there is the continued employment of each such executive officer does not subject the Company to any reason why any such determination letter should be revoked; (iii) material liability with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 any of the Codeforegoing matters.
(d) The Company is in compliance with all applicable federal, state, local and foreign statutes, laws (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insuredcommon law), judicial decisions, regulations, ordinances, rules, judgments, orders and codes respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, except where the failure to comply would not have a Material Adverse Effect, and no work stoppage or labor strike against the Company is pending or, to its knowledge, threatened, nor is the Company involved in or, to its knowledge, threatened with respect any labor dispute, grievance or litigation relating to labor matters involving any current or former employees or directors of any the Company or its Subsidiaries beyond their retirement or other termination of serviceindependent contractors. There are no suits, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Companyactions, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in fulldisputes, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim claims (other than routine claims for benefits) by), on behalf of investigations or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries andaudits pending or, to the knowledge of Sellerthe Company, there is no existing condition, situation or set of circumstances which could reasonably be expected to result threatened in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction connection with any other eventEmployee Benefit Plan, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving but excluding any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthforegoing which would not have a Material Adverse Effect.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 4 contracts
Samples: Securities Purchase Agreement (Givemepower Corp), Securities Purchase Agreement (Givemepower Corp), Securities Purchase Agreement
Employee Matters. (a) Section 3.11 4.11(a) of the Company Rand Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employmentincentive, consulting, bonus, incentive or deferred compensation, vacationpaid-time-off, stock option or other equity-based, phantom equity, severance, separation, termination, retention, change of change-of-control, pension, profit-sharing, retirement, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, medical, dental, vision, welfare, accident, disability, workmen’s compensation or other insurance, collective bargaining, material fringe benefit benefit, or other similar plan, program, agreement agreement, practice, policy, arrangement or commitment, whether written or unwritten, commitment for the benefit of any employee, former employee, director or former director of any Company Rand or any of its Subsidiaries Subsidiary (collectively, “Rand Employees”), entered into, maintained or contributed to, or required to be maintained or contributed to by any Company Rand, its Subsidiary or any of Person that, together with Rand or its Subsidiaries or to which any Company or any of its Subsidiaries Subsidiary, is obligated to contributetreated as a single employer under Section 414(b), or with respect to which any Company or any of its Subsidiaries has any liability(c), direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementm) or otherwise providing benefits (o) of the Code, (each such Person, an “ERISA Affiliate”), whether written or oral, and whether or not subject to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof ERISA (such plans, programs, agreements agreements, practices, policies, arrangements and commitments, herein referred to as the “Company Rand Benefit Plans”). In addition, Section 3.11 4.11(a) of the Company Rand Disclosure Schedule identifies sets forth a true, complete and correct list of each Company Benefit Plan employment agreement or independent contractor agreement for substantial personal services to which Rand or its Subsidiary is a party, other than oral agreements that Buyers shall assume pursuant can be terminated on prior notice of 30 days’ or less, without continuing obligation or penalty (such agreements herein referred to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, as the “Assumed PlansEmployment Agreements”).
(b) With respect to each Rand Benefit Plan, Rand has made available to East true, complete and correct copies of the following (as applicable): (i) the current written document evidencing such Rand Benefit Plan (including any related trust agreements or other funding arrangements) and any amendment thereto or, with respect to any such plan that is not in writing, a written description of the material terms thereof, (ii) the current summary plan description, and all summaries of material modifications thereto, (iii) the two (2) most recent Form 5500s, annual reports, financial statements and/or actuarial reports, (iv) the most recent IRS determination, opinion or advisory letter, and (v) all material written communications provided to employees in the last twelve (12) months relating to such Rand Benefit Plans and all other material written communications with any governmental agency in the last thirty-six (36) months relating to such Rand Benefit Plans, including any materials relating to any government investigation or audit or any submissions under any voluntary compliance procedure. Rand has made available to East true, complete and correct copies of any written Employment Agreements including all amendments thereto and, with respect to any Employment Agreement that is not in writing, a written description of the material terms thereof.
(i) Each of the Company Rand Benefit Plans Plan (including any related trust) has been maintained, operated and administered (including with respect to reporting and disclosure) in accordance with its terms in all material respects respects, (ii) all Rand Benefit Plans are in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, including Section 409A of the Code, in each case in all material respects, (iii) to Rand’s knowledge no non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) has occurred with respect to any Rand Benefit Plan which would result in a material penalty, (iv) all contributions to, and payments from, Rand Benefit Plans have been made in accordance with applicable law, including, but not limited tothe terms of Rand Benefit Plans, ERISA, the Code and all other applicable Laws in all material respects, (v) there are no current or, to Rand’s knowledge, threatened investigations by any Governmental Entity, termination proceedings, or other claims by any Person (except routine claims for benefits) with respect to Rand Benefit Plans or, to Rand’s knowledge, any fiduciary thereof.
(d) Except as set forth in Section 4.11(d) of Rand Disclosure Schedule, (i) Rand and its Subsidiary and, to Rand’s knowledge, each case the regulations thereunder; other party to each Employment Agreement has duly performed all obligations required to be performed by it to date under such agreement, and (ii) each Company to Rand’s knowledge, no event or condition exists that constitutes or, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of Rand or its Subsidiary or, to Rand’s knowledge, any other party thereto under any such Employment Agreement.
(e) Each Rand Benefit Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (including each related trust intended to be exempt from taxation under Section 501(a) of the Code, ) has received an IRS determination letter or is comprised of a master and prototype or volume submitter plan that has received a favorable determination opinion or advisory letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to IRS. Since the date hereofof each such determination, as of the date hereof and as of the Closing Dateopinion or advisory letter, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability event has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, occurred and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in the revocation of any material liability of the Companies such determination, opinion or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation advisory letter or set of circumstances which that could reasonably be expected to result in the loss of the qualified status of any such a claim. Each Company Rand Benefit Plan (or the tax-exempt status of any such trust).
(f) Except as set forth on Section 4.11(f) of Rand Disclosure Schedule, no Rand Benefit Plan that is a “nonqualified deferred compensation welfare benefit plan” within the meaning of as defined in Section 409A(d)(13(1) of ERISA (each, a “Welfare Plan”) or Employment Agreement provides for continuing benefits or coverage for any participant or beneficiary or covered dependent of a participant after such participant’s termination of employment, except to the Code extent required by law. Each Welfare Plan which provides medical, dental, health or long-term disability benefits (except a flexible spending account) is fully insured and claims with respect to any award thereunderparticipant or covered dependent under such Welfare Plan could not result in any uninsured liability to Rand, its Subsidiary or NEWCO (except a flexible spending account).
(g) Except as set forth in each case that is subject to Section 409A 4.11(g)(i) of Rand Disclosure Schedule, the execution of this Agreement and the Stock Purchase do not constitute a triggering event under any Rand Benefit Plan, Employment Agreement, policy, arrangement, statement, commitment or agreement, whether or not legally enforceable, which (either alone or upon the occurrence of any additional or subsequent event) will or may result in any “parachute payment” (as defined in Section 280G of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance ). Except as set forth on Section 409A 4.11(g)(ii) of the Code.
(c) Neither the Companies nor any of their Subsidiaries willRand Disclosure Schedule, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company no Rand Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan Employment Agreement provides for (A) the reimbursement payment of excise Taxes under Section 4999 of the Code severance, termination, change-in-control or any income Taxes under the Code similar type of payments or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthbenefits.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Rand Capital Corp), Stock Purchase Agreement
Employee Matters. (a) Section 3.11 Neither the Company nor any of its Subsidiaries has any labor contracts or collective bargaining agreements with respect to any persons employed by or otherwise performing services for the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice. As of the date hereof, there is no unfair labor practice complaint pending, or to the Knowledge of the Company threatened, against the Company or any of its Subsidiaries. There is no labor strike, dispute, slowdown, or stoppage pending or to the Knowledge of the Company threatened, against the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has experienced any primary work stoppage or labor difficulty involving its employees during the last three (3) years, except in each case as is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
(b) Section 3.8(b) of the Seller Disclosure Schedule sets forth Letter is a true, true and complete and correct list of each “bonus, deferred compensation, pension, retirement, profit sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, employment, termination, severance, compensation, medical, health, welfare, fringe benefits or other plan, agreement, policy or arrangement which the Company or any of its Subsidiaries maintains, or as to which the Company or any of its Subsidiaries is or will be required to make any payment for the benefit plan” of any employee, director, former employee or former director of the Company and its Subsidiaries (the "Compensation and Benefit Plans"). The Company has delivered or made available to Buyer with respect to each Compensation and Benefit Plan correct and complete copies, where applicable, of (i) all plan documents and amendments thereto, trust agreements and amendments thereto and insurance and annuity contracts and policies, (ii) the current summary plan description, (iii) the Annual Reports (Form 5500 series) and accompanying schedules, as defined filed, for the most recently completed two plan years for which such reports have been filed, (iv) the financial statements for the most recently completed two plan years for which statements have been prepared, (v) the most recent determination letter issued by the Internal Revenue Service (the "IRS") and the application submitted with respect to such letter, and (vi) all correspondence with the IRS or Department of Labor concerning any pending controversy. Any "change of control" or similar provisions contained in any Compensation and Benefit Plan are specifically identified in Section 3(33.8(b) of the Seller Disclosure Letter.
(c) All Compensation and Benefit Plans have been administered in all material respects in accordance with their terms and are in compliance in all material respects with all applicable laws, including the Code and the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”"). Section 3.11 of the Company Disclosure Schedule identifies each Company Each Compensation and Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and that is intended to be qualified under Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue ServiceIRS, or has pending an application for such determination from and the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there Company is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, aware as of the date hereof and as of any circumstances likely to result in revocation of any such favorable determination letter or of any circumstance indicating that any such plan is not so qualified in operation. As of the Closing Datedate hereof, there is no pending or, to the Knowledge of the Company, threatened litigation, claim or audit by any Person relating to the Compensation and Benefit Plans. To the Knowledge of the Company, no prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code has occurred which would be expected to result in material liability to the Company or any of its Subsidiaries, assuming that, for purposes of determining materiality, the actuarially determined present value of all “benefit liabilities” "taxable period" within the meaning of Section 4001(a)(16) 4975 of ERISA did and does not exceed the then current value of assets of Code with respect to such Company Benefit Plan and (B) the amount of such liabilities prohibited transaction had expired as of the last day date hereof.
(d) As of the most recent plan year ended prior date hereof, no liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the date hereof was properly reflected on the financial statements of Seller Company or its applicable any Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current any ongoing, frozen or former employees or directors terminated "single-employer plan," within the meaning of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(24001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate"); (v) . None of the Company, any of its Subsidiaries and their ERISA Affiliates have contributed, or been obligated to contribute, to a multi-employer plan under Subtitle E of Title IV of ERISA at any time, and no Controlled Group Liability liability has been or is expected to be incurred by the Company or any Subsidiary with respect to any such plan. None of the Company, any of its Subsidiaries or any ERISA Affiliate contributes to or maintains a Pension Plan subject to Title IV of their respective ERISA Affiliates that or has not been satisfied in full, and no condition exists that presents a risk contributed to or maintained any such plan at any time during the six-year period prior to the Companiesdate hereof.
(e) All contributions required to be made under the terms of any Compensation and Benefit Plan as of the date hereof, their Subsidiaries have been timely made or any of their respective ERISA Affiliates of incurring any such liability; have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company Reports prior to the date hereof.
(vif) neither Neither the Companies Company nor any of their its Subsidiaries contributes on behalf has any obligations for retiree health and life benefits under any Compensation and Benefit Plan, except as required under Part 6 of employees Title I of the Companies ERISA.
(g) Except as contemplated by this Agreement or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined disclosed in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(13.8(g) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubtSeller Disclosure Letter, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery consummation of this Agreement nor and the consummation of the other transactions contemplated by this Agreement will, either alone or in conjunction with any other event, will not (i) result in entitle any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor employees of the Companies Company or any of their its Subsidiaries or to such individuals in the aggregateseverance pay, (ii) materially accelerate the time of payment or vesting or trigger any payment of compensation or benefits under, increase the amount or value of any benefit or compensation otherwise payable or required to be provided to trigger any such directorother material obligation pursuant to, employee any of the Compensation and Benefit Plans or independent contractor, the Stock Plan or (iii) result in the acceleration of the time of payment, vesting, exercisability any breach or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trustviolation of, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certificationdefault under, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies Compensation and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of or the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.Stock Plan.
Appears in 3 contracts
Samples: Stock Purchase and Sale Agreement (Mvii LLC), Stock Purchase and Sale Agreement (Mvii LLC), Stock Purchase and Sale Agreement (Dsi Toys Inc)
Employee Matters. (a) Section 3.11 of Except as set forth on Schedule 2.16 hereto, neither the Company Disclosure Schedule sets forth a truenor any Subsidiary has in effect any employment agreements, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974consulting agreements, as amended (“ERISA”)deferred compensation, whether pension or not subject to ERISA, and each material employment, consultingretirement agreements or arrangements, bonus, incentive or deferred compensationprofit-sharing plans or arrangements, vacationor labor or collective bargaining agreements, stock option written or oral. Schedule 2.16 hereto sets forth a true and complete list of the compensation paid to the Company's three highest compensated employees for the two years ended July 31, 1994 and 1995. The Company and the Principal Shareholders have no knowledge that any of the officers or other equity-based, severance, termination, retention, change key employees of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed Subsidiary presently intends to by any terminate his employment. The Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is are in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and regulations relating to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours hours. The Company and occupational safety each Subsidiary is in material compliance with the terms of all plans, programs and health.
(f) The Companies agreements listed on Schedule 2.16, and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside each such plan, program or agreement is in compliance with all of the U.S. requirements and provisions of the Employee Retirement Income Security Securities Act of 1974, as amended ("ERISA"). No such plan or program has engaged in any "prohibited transaction" as defined in Section 4975 of the Internal Revenue Code of 1986 (the "Code"), or has 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 plan or program. Neither the Company nor any Subsidiary has or has maintained any group health plan subject to Section 4980B of the Code or Section 162(i) or (iik) for the benefit of any individual whose principal place of employment is outside of the U.S.Code as amended by the Consolidated Omnibus Budget Reconciliation Securities Act of 1985, as amended by the Technical and Miscellaneous Revenue Securities Act of 1988. With respect to each plan listed on Schedule 2.16 hereto, to the knowledge of the Company and its Principal Shareholders all required filings, including all filings required to be made with the United States Department of Labor and Internal Revenue Service, have been timely filed.
Appears in 3 contracts
Samples: Series a Preferred Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc), Series a Preferred Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc), Series a Preferred Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Employee Matters. (a) Section 3.11 3.11(a) of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended and including the regulations promulgated thereunder (“ERISA”), whether or not written or unwritten or subject to ERISA, as well as each employee or director benefit or compensation plan, arrangement or agreement (whether written or unwritten) and each material employment, consulting, bonus, supplemental income, collective-bargaining, incentive or deferred compensation, vacation, stock purchase, stock option or other equity-based, severance, termination, retention, change of change-in-control, profit-sharing, fringe benefit, workers’ compensation, voluntary employees’ beneficiary association, health, welfare, accident, sickness, death benefit, hospitalization, insurance, personnel policy, disability benefit or other similar plan, program, agreement agreement, arrangement or commitment, commitment (whether written or unwritten, ) for the benefit of any current, former or retired employee, former employeeconsultant, director independent contractor, other service provider or former director of any Company Seller or any of its Subsidiaries ERISA Affiliates (as defined herein) entered into, maintained or contributed to by any Company Seller or any of its Subsidiaries ERISA Affiliates or to which any Company Seller or any of its Subsidiaries ERISA Affiliates is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof contribute (such plans, programs, agreements agreements, arrangements and commitments, herein referred to as collectively, the “Company Seller Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) For purposes of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyAgreement, the term “Assumed Plans”).
(b) ERISA Affiliate” means any entity that is a member of (i) Each a controlled group of corporations (as defined in Section 414(b) of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawCode), including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be a group of trades or businesses under common control (as defined in Section 414(c) of the Code), (iii) an affiliated service group (as defined under Section 414(m) of the Code or the regulations under Section 414(o) of the Code) or (iv) a “qualifiedcontrolled group” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) 4001 of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries which includes Seller or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or its Subsidiaries. No other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Seller Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeexists.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 3 contracts
Samples: Merger Agreement (BNC Bancorp), Merger Agreement (Ecb Bancorp Inc), Merger Agreement (Crescent Financial Bancshares, Inc.)
Employee Matters. (a) Section 3.11 of the The Company Disclosure has listed on Schedule sets forth a true, complete and correct list of each 5.17(a) any “employee benefit plan” as defined in Section 3(3) of subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether that it or not any Subsidiary maintains.
(b) No director or officer or other employee of the Company or any Subsidiary will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting) or lapse of repurchase rights or obligations with respect to any employee benefit plan subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option ERISA or other equity-basedbenefit under any compensation plan or arrangement of the Company or any Subsidiary (each, severance, termination, retention, change an “Employee Benefit Plan”)) solely as a result of control, profit-sharing, fringe benefit the transactions contemplated in this Agreement; and no payment made or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of to be made to any employee, former employee, director current or former employee or director of any the Company or any of its Subsidiaries entered into, maintained or contributed to Affiliates by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 reason of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement transactions contemplated hereby (including the LFG Deferred Compensation Plans) whether alone or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance connection with applicable lawany other event, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (iia termination of employment) each Company Benefit Plan intended to be will constitute an “qualifiedexcess parachute payment” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 280G of the Code.
(c) Neither No employee is, or is now expected to be, in violation of any term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant, and the Companies nor continued employment of each employee does not subject the Company or any of their its Subsidiaries will, on and after to any liability with respect to any of the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planforegoing.
(d) Neither the execution or delivery The Company and each of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is are in substantial compliance in all material respects with all applicable federal, state, local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments, orders and collective bargaining agreements codes respecting employment and employment, employment practices, labor, terms and conditions of employment, employment and wages and hours hours, and occupational safety and health.
(f) The Companies and no work stoppage or labor strike against the Company or any Subsidiary is pending or, to their Subsidiaries do not maintain knowledge, threatened, nor is the Company or any material Company Benefit Plans (i) outside Subsidiary involved in or, to their knowledge, threatened with any labor dispute, grievance or litigation relating to labor matters involving any employees of the U.S. Company or any Subsidiary. To the Company’s knowledge, there are no suits, actions, disputes, claims (ii) other than routine claims for benefits), investigations or audits pending or, to the benefit of any individual whose principal place of employment is outside knowledge of the U.S.Company, threatened in connection with any Employee Benefit Plan.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Phoenix Venture Fund LLC), Securities Purchase Agreement (Phoenix Venture Fund LLC), Securities Purchase Agreement (Communication Intelligence Corp)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawLaw, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of SellerCompany, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing DateEffective Time, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller Company or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of Company or any Company or its Subsidiaries Subsidiary beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the CompaniesCompany, their its Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies Company nor any of their its Subsidiaries contributes on behalf of employees of the Companies Company or any of their its Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies Company or any of their its Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies Company nor any of their its Subsidiaries has engaged in a transaction in connection with which the Companies Company or any of their its Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies Company or any of their Subsidiaries Company Subsidiary and, to the knowledge of SellerCompany, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, Code has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, Code and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code. No Company Option granted under any Company Benefit Plan has an exercise price that has been or may be less than the fair market value of the underlying stock as of the date such Company Option was granted or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such Company Option.
(c) Neither All Company Options have been granted in compliance in all material respects with the Companies nor any terms of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any applicable Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed PlanPlans and with applicable Law.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies Company or any of their its Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, compensation or (iv) result in any material limitation on the right of the Companies Company or any of their its Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies Company or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies Company or any of their its Subsidiaries. Each of the Companies Company and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do Company does not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Landamerica Financial Group Inc), Merger Agreement (Fidelity National Financial, Inc.)
Employee Matters. (ai) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(34.1(p)(i) of the Seller Disclosure Schedule lists all Business Plans. As of the date hereof, Seller has made available to Capital One copies of each Business Plan. No Business Plan is maintained outside the United States. There are no Employee Retirement Income Security Act of 1974Plans that are (or are required to be) sponsored, as amended (“ERISA”)maintained, whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, Acquired Entity or with respect to which any Company Acquired Entity is a party or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)obligor.
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit No Business Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 ERISA, none of the Code, Business Plans are multiemployer plans (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section § 3(37) of ERISA) and neither Seller nor any of its ERISA Affiliates contributes to, has contributed to or has any liability with respect to a multiemployer plan or an Employee Plan subject to Title IV of ERISA. None of the Business Plans is a multiple employer pension plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, multiple employer welfare arrangement (within the meaning of Section 4063 § 3(40) of ERISA; ).
(iii) The Banking Entities have no liability for providing, under any Business Plan or otherwise, any post-employment or post-retirement health or medical or life insurance benefits for retired or former employees or beneficiaries or dependents thereof, except as required by Section 4980B of the Code or coverage, benefits the full cost of which is borne by the retired or former employees or beneficiaries or dependents thereof or benefits provided pursuant to a Business Plan for a period of not more than eighteen (18) months following termination of employment or benefits during any period in which the retired or former employee is receiving severance pay.
(iv) Except as set forth in Schedule 4.1(p)(iv) of the Seller Disclosure Schedule, no Business Plan provides that the consummation of the transactions contemplated hereby will (A) accelerate the time of payment or vesting of any compensation or benefits, (B) trigger any payment or benefit, (C) trigger any funding of any payments or benefits (through a grantor trust or otherwise) or (D) increase the amount of any payment or benefit due to any Business Employee.
(v) No Business Plan provides for the gross-up or reimbursement of taxes under Section 409A or 4999 of the Code, or otherwise.
(vi) There are no employees employed by the Acquired Entities.
(vii) all material contributions Schedule 4.1(p)(vii) of the Seller Disclosure Schedule sets forth a complete and accurate list of each Business Employee (such list to be periodically updated, subject to Section 5.8(k), between the date hereof and the Closing Date to reflect hires and terminations in the ordinary course and on terms not inconsistent with Section 5.2(b)(M)) and in the case of each such individual, the following information, if applicable: (A) legal name and title or other material amounts payable by the Companies position; (B) whether such individual is an employee of Parent, Seller or any one of their Subsidiaries Affiliates, whether full-time or part-time, whether hourly or salaried and whether exempt or non-exempt; (C) whether absent from active employment or service and, if so, the date such absence commenced and the anticipated date of return to active employment or active service, if known; (D) annual salary or base wage rate, as the case may be, and, if applicable, target bonus and other incentive compensation, (E) accrued unused vacation, sick and other paid-time-off eligibility (F) commencement of service date for purposes of service credit under Business Plans and (G) salary, target bonus and other incentive compensation for the prior twelve (12) month period. If, prior to the Closing Date, Seller hires an individual to fill an Open Role, Seller shall provide Capital One with the information required to be set forth on Schedule 4.1(p)(vii) of the Seller Disclosure Schedule with respect to such individual no later than the third Business Day following such individual’s date of hire. No later than the earlier of (x) five (5) Business Days following the date a Business Employee accepts Capital One’s offer of employment and Capital One notifies Seller in writing of such acceptance and (y) three (3) Business Days prior to the Closing Date, Seller shall provide to Capital One, for each Company Benefit Plan Business Employee who has accepted Capital One’s offer of employment, such Business Employee’s (1) home address, (2), social security number, (3) birth date, (4) gender and (5) any information reasonably requested by Capital One necessary to facilitate the establishment of payroll or benefits administration; provided, however, that Capital One agrees that each offer letter will require, as part of the offer acceptance, that Seller be permitted to provide to Capital One the information set forth in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; this sentence.
(viii) neither With respect to the Companies nor business of the Banking Entities: (A) the Banking Entities are not currently (and have not been during the past three years) party to, are not in the process of negotiating and are not bound by any collective bargaining agreement or relationship with any labor organization and no labor organization or group of employees has filed any representation petition or made any written or oral demand for recognition; (B) to the Knowledge of Seller, no Business Employee has indicated that he or she is a party to any confidentiality, non-competition, proprietary rights or other such agreement between such employee and any other Person (other than Seller) that would be material to the performance of such employee’s employment duties or the ability of the Banking Entities to conduct their business; (C) except to the extent that any of their Subsidiaries the following would not, individually or in the aggregate, be reasonably expected to result in material liability to the business of the Banking Entities, there is no (and there has engaged not been within the past three years any) employment-related proceeding, complaint, grievance, inquiry or obligation of any kind, pending or, to the Knowledge of Seller, threatened in a transaction in connection with which any forum, related to an alleged violation or breach by the Companies Banking Entities (or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 its officers or 502(imanagers) of ERISA any Law or a material tax imposed pursuant to Section 4975 or 4976 of the CodeContract; and (D) to the Knowledge of Seller, no employee or agent of Seller has at any time committed any act or omission giving rise to material liability for any violation or breach identified in clause (C).
(ix) there is no pendingWith respect to the Business Employees, threatened or anticipated claim (other than routine claims for benefits) byexcept as, on behalf of or against any of individually and in the Company Benefit Plans or any trusts related thereto which could aggregate, would not reasonably be expected to result in any material liability to the business of the Companies or any of their Subsidiaries andBanking Entities, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code Seller and any award thereunder, in each case that is subject to Section 409A of the Code, has its Affiliates have been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting Laws in respect of employment and employment practices, terms and conditions of employment, wages and hours and hours, social security contributions, tax withholdings, occupational safety and healthhealth and employee and contractor classification. With respect to the Business Employees, Seller and its Affiliates have made timely and proper payment of all amounts payable with respect to employees and independent contractors, including all wages, commissions, bonuses, severance payments, independent contractor payments, reimbursements, other amounts due pursuant to any employment or services agreement, and withholding for income and employment Taxes, or otherwise have made appropriate accruals on their books.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Framework Agreement (Cabela's Credit Card Master Note Trust), Framework Agreement (Synovus Financial Corp)
Employee Matters. (a) Section 3.11 As of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof Group Companies employ in the aggregate 350 full-time employees and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller engage no consultants or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors independent contractors. No employee of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) Knowledge of the Code and Company, is obligated under any award thereundercontract (including licenses, in each case that is covenants or commitments of any nature) or other agreement, or subject to Section 409A any judgment, decree or order of any court or administrative agency, that would materially interfere with such employee’s ability to promote the interest of the Code, has been operated in compliance in all material respects Group Companies or that would conflict with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation PlanGroup Companies’ business. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement Agreement, nor the consummation carrying on of the transactions contemplated Company’s business by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Group Companies, nor the conduct of the business as now conducted and as presently proposed to be conducted, will, to the Knowledge of the Company, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated. Except as disclosed in Section 4.20 of the Disclosure Schedule, each Group Company has complied in all material aspects with all applicable employment and labor laws, including provisions thereof relating to wages, hours, housing funds, social welfare, social insurance contribution and collective bargaining. Except as required by law, there is no other pension, retirement, profit-sharing, deferred compensation, bonus, incentive or other employee benefit program, arrangement, agreement or understanding to which any Group Company contributes, is bound, or under which any employees or former employees (or their beneficiaries) are eligible to participate or derive a benefit. None of the Group Companies is aware that any of its officers intends to terminate their employment, nor does any Group Company have a present intention to terminate the employment of any of its officers. None of the Founders during the previous four (4) years, has been (a) subject to voluntary or involuntary petition under any applicable bankruptcy laws or any state insolvency laws or the appointment of their Subsidiaries has made manager, a receiver or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending demand for recognition criminal proceeding (excluding traffic violations and other minor offenses); (c) subject to any order, judgment, or certificationdecree (not subsequently reversed, and there are no representation suspended, or certification proceedings vacated) of any court of competent jurisdiction permanently or petitions seeking a representation proceeding presently pending temporarily enjoining him from engaging, or threatened to be brought otherwise imposing limits or filedconditions on his engagement in any securities, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activitiesinvestment advisory, strikesbanking, work stoppages, slowdowns, lockouts, arbitrations or grievancesinsurance, or other material labor disputes pending type of business or threatened against acting as an officer or involving any director of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. a public company; or (iid) for the benefit found by a court of competent jurisdiction in a civil action or by any individual whose principal place of employment is outside of the U.S.relevant regulatory organization to have violated any applicable securities, commodities, or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.
Appears in 2 contracts
Samples: Series B Preferred Share Purchase Agreement (Jupai Holdings LTD), Series B Preferred Share Purchase Agreement (Jupai Holdings LTD)
Employee Matters. (a) Schedule 8.1.16(a) lists (and identifies the sponsor of) each "Employee Pension Benefit Plan," as that term is defined in Section 3.11 3(2) of ERISA, each "Employee Welfare Benefit Plan," as that term is defined in Section 3(1) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans"), and each other retirement, pension, profit-sharing, money purchase, deferred compensation, incentive compensation, bonus, stock option, stock purchase, severance pay, unemployment benefit, vacation pay, savings, medical, dental, post-retirement medical, accident, disability, weekly income, salary continuation, health, life or other insurance, fringe benefit, or other employee benefit plan, program, agreement, or arrangement maintained or contributed to by Seller or its Affiliates in respect of or for the benefit of any Transferred Employee or former employee of Seller, excluding any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of Transferred Employees or former employees employed or formerly employed by Seller outside of the Company Disclosure United States, as of the date hereof (collectively, together with the ERISA Plans, referred to hereinafter as the "Plans"). Schedule sets forth 8.
(a) also includes a true, complete and correct list of each “employee benefit plan” written employment, severance, termination or similar-type agreement between Seller and its Affiliates and any Transferred Employee (the "Employment Agreements"). Seller has delivered to Buyer accurate and complete copies of all Plans and Employment Agreements (or representative samples in the case of form agreements) and, if applicable, summary plan descriptions with respect to such Plans and Employment Agreements and summary descriptions of any such Plan or Employment Agreement that is not otherwise in writing. Except for retention bonuses paid in connection with the closing of the transactions contemplated by this Agreement and except as otherwise disclosed on Schedule 8.1.16(a), the execution and delivery of this Agreement by Seller and the performance of this Agreement by Seller will not directly result now or at any time in the future in the payment to any Transferred Employee of any severance, termination, or similar-type payments or benefits being paid to any Transferred Employee.
(b) Except as set forth on Schedule 8.1.16(b):
(i) Neither Seller nor any of its Affiliates, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof, has engaged in any transaction as a result of which Seller or any of its Affiliates could be subject to any material liability pursuant to Section 409 of ERISA or to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the IRC; and
(ii) Since the effective date of ERISA, no material liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by Seller or any of its Affiliates (other than liability for premiums due to the PBGC), unless such liability has been, or prior to the Closing Date will be, satisfied in full.
(c) Except as set forth on Schedule 8.1.16(c), with respect to the ERISA Plans other than those ERISA Plans identified on Schedule 8.1.16(a) as "multiemployer plans":
(i) the PBGC has not instituted proceedings to terminate any Plan that is subject to Title IV of ERISA (the "Retirement Plans");
(ii) none of the ERISA Plans has incurred an "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”IRC), whether or not subject to ERISAwaived, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies last day of the most recent fiscal year of each Company Benefit Plan that Buyers shall assume pursuant of the ERISA Plans ended prior to Section 5.8(f) the date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).Agreement;
(biii) (i) Each each of the Company Benefit ERISA Plans has been operated and administered in all material respects in accordance with its provisions and with all applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; laws;
(iiiv) each Company Benefit Plan of the ERISA Plans that is intended to be “"qualified” " within the meaning of Section 401(a) of the CodeIRC and, to the extent applicable, Section 401(k) of the IRC, has received a favorable determination letter from been determined by the Internal Revenue ServiceIRS to be so qualified, or and nothing has pending an application for occurred since the date of the most recent such determination from (other than the Internal Revenue Service with respect effective date of certain amendments to those provisions for which the IRC, the remedial amendment period under Section 401(bfor which has not yet expired) that would adversely affect the qualified status of any of such ERISA Plans;
(v) there are no pending material claims by or on behalf of any of the Code has not expiredERISA Plans, and, to the knowledge of Seller, there is not by any reason why employee or beneficiary covered under any such determination letter should ERISA Plan, or otherwise involving any such ERISA Plan (other than routine claims for benefits and routine expenses);
(vi) each ERISA Plan which is a group health plan has been operated and administered in compliance with the continuation coverage provisions of Section 498B of the IRC and Part 6 of Title I of ERISA;
(vii) all contributions and premiums that would normally be revoked; (iii) made or paid with respect to each Company Benefit any ERISA Plan that is subject to Title IV or Section 302 Employment Agreement on behalf of ERISA or Section 412 or 4971 Transferred Employees as of the Code, Closing Date will have been made by the Closing Date; and
(Aviii) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) Date no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) Transferred Employee will be excluded from coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” welfare benefit plan (as such term is defined in Section 3(23(1) of ERISA) maintained or contributed to by Seller.
(d) Except as set forth on Schedule 8.1.16(d); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees none of the Companies or any of their Subsidiaries to ERISA Plans is a “"multiemployer pension plan” (Plan," as such that term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries and with respect to each Company Benefit Plan any such multiemployer plans (as so defined) listed in respect Schedule 8.1.16(d), Seller has not made or incurred a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in Sections 4203 and 4205 of current ERISA that would result in the incurrence of a material liability by Seller. Except as set forth on Schedule 8.1.16(d), neither Seller nor any Affiliates of Seller has made or prior plan years have been paid incurred a "complete withdrawal" or accrued a "partial withdrawal" (as such terms are defined in accordance with generally accepted accounting principlesSections 4203 and 4205, respectively, of ERISA) that would result in the incurrence of liability by Seller or its Affiliates, and the performance of this Agreement will not result in such withdrawal(s) or liability.
(e) Except as set forth on Schedule 8.1.16(e), (i) none of the Transferred Employees are represented by a labor union or labor organization; (viiiii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be Seller is not subject to either a material civil penalty assessed pursuant any collective bargaining agreement covering any Transferred Employee; (iii) there are no current, or to Section 409 the best knowledge of Seller, any pending or 502(i) of ERISA threatened strikes, slowdowns, picketing, or a material tax imposed pursuant work stoppages affecting the Business or with respect to Section 4975 or 4976 of the Codeany Transferred Employee covered by collective bargaining; and (ixiv) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf pending lockout by Seller of or against any employees of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries andBusiness, and no such action is contemplated by Seller; (v) to the best knowledge of Seller, there is no existing condition, situation pending or set threatened organizing activity or petition for certification of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of collective bargaining representative involving employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, Business and there are has been none within the twelve (12) months preceding the date of the Agreement; (vi) to the best knowledge of Seller, there is no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened charge, action, complaint, or proceeding of any nature against Seller relating to be brought the violation of any applicable state or filedfederal labor or employment law or regulation in connection with the Business, including any charge or complaint filed by any employee or labor organization with the National Labor Relations Board Board, the Equal Employment Opportunity Commission, or any other labor relations tribunal or authority. There are no material organizing activitiesadministrative governmental agency, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or nor is there any other material labor disputes pending or threatened labor or employment dispute against or involving any affecting Seller in connection with the Business; (viii) with respect to employees of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance Business, Seller has complied in all material respects with all applicable laws and collective bargaining agreements respecting employment and employment practices, terms and conditions of relating to employment, wages and equal employment opportunity, nondiscrimination, collective bargaining, wages, hours and of work, employee benefits, occupational safety and health, immigration, and plant closings; and (ix) Seller shall provide employees of the Business with any required notices under any federal, state, or municipal law or regulation concerning the termination of their employment with Seller. Seller has delivered to Buyer accurate and complete copies of all collective bargaining agreements affecting any of the Transferred Employees.
(f) The Companies and their Subsidiaries do This Agreement shall not maintain result in any material Company Benefit Plans (i) outside Transferred Employee becoming entitled to separation pay or severance which could be or become an obligation of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Citizens Utilities Co), Asset Purchase Agreement (Citizens Utilities Co)
Employee Matters. (a) Section 3.11 The Company has delivered to the Purchaser a list of its and its Subsidiaries' current employees (the "Employees"). This list, attached hereto as Schedule 2.13(a), sets forth the current compensation, commissions or hourly rate of pay, date of birth, date and location of employment and job title for each Employee. Schedule 2.13(a) lists all agreements between the Company and its Subsidiaries and any Employee(s) with respect to the employment of any Employee(s). Except as set forth on Schedule 2.13(a), there are no outstanding loans with outstanding principal amounts in excess of $50,000 from the Company or any of its Subsidiaries to any Employees. Except as set forth on Schedule 2.13(a), no Employee is on disability or other leave of absence and the Company is not aware of the intent of any officer, executive employee or head of a department of any of the Company Disclosure and its Subsidiaries to terminate his/her employment.
(b) Schedule sets forth a true, complete and correct list of 2.13(b) hereto lists each “"employee benefit plan” ", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to covered by ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or that any of the Company and its Subsidiaries entered into, maintained sponsors or contributed to by any Company or any of its Subsidiaries or has sponsored to which any the Company or any of its Subsidiaries is obligated or has been in the past three years required to contributemake contributions, including without limitation any pension, profit-sharing, retirement or deferred compensation plan, each other benefit plan, policy, arrangement or practice, whether covering one or more employees, which provides deferred compensation, bonus, stock purchase, stock option, vacation, severance, disability, hospitalization, medical insurance or life insurance payments or benefits and any other material employee benefit plans, agreements, arrangements or understandings maintained for the benefit of the Employees or former employees of any of the Company and its Subsidiaries ("Former Employees") (collectively, together with respect any related trusts, the "Employee Benefit Plans"). Except as set forth on Schedule 2.13(b), no Employee Benefit Plan constitutes a multi-employer plan (as defined under Section 400(a)(3) of ERISA). Except as set forth on Schedule 2.13(b), all participants in the Employee Benefit Plans are Employees or Former Employees (or their dependents or beneficiaries). The Company has previously delivered or made available to which any the Purchaser true and complete copies of all documents or instruments establishing or constituting each such Employee Benefit Plan and all summary plan descriptions or other descriptive materials relating thereto distributed by the Company and its Subsidiaries to Employees. Except as set forth on Schedule 2.13(b), all Employee Benefit Plans are currently in compliance with all applicable funding requirements under law. Schedule 2.13(b) also sets forth a list of those Former Employees (or their dependents or beneficiaries) who are receiving continuation coverage under the Company's or any of its Subsidiaries has any liabilitySubsidiaries' medical plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the dates upon which those individuals commenced receiving such continuation coverage. Except as set forth on Schedule 2.13(b), direct or indirectnone of the Company, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to the Purchaser will incur any beneficiary liability under any Employee Benefit Plan or dependent thereof (such plans, programs, agreements and commitments, herein referred to agreement with an Employee solely as the “Company Benefit Plans”). Section 3.11 a result of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of transactions contemplated by this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)Agreement.
(bc) Except as set forth on Schedule 2.13 (c) hereto, (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Employee Benefit Plan 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, or has pending which is an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof"employee pension benefit plan", as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to meets the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning requirements of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1401(a) of the Code and any award thereunder, in each case that related trust is subject to exempt from U.S. federal income tax under Section 409A 501(a) of the Code, has been operated Code and (ii) the Company and its Subsidiaries are in compliance in all material respects with Section 409A the terms of such Employee Benefit Plans and with the requirements of the Internal Revenue Code since January 1of 1986, 2005as amended (the "Code"), based upon a good faith, reasonable interpretation of (A) Section 409A and ERISA in respect thereto. None of the Code, and Company or its Subsidiaries has any obligation under any Employee Benefit Plan or otherwise to provide post-retirement health benefits (B)(1exclusive of obligations under COBRA) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A with respect to any of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities Employees or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed PlanFormer Employees.
(d) Neither The Employees are not and have not in the execution past three years been covered by any labor or delivery of this Agreement nor collective bargaining agreement. No strike, work stoppage, picketing, slowdown, lockout or material labor dispute involving the consummation of Company's or its Subsidiaries' operations has occurred during the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be providedpast three years or, to any directorthe Company's knowledge, employee is threatened. To the Company's knowledge, no attempt at the organization of a union involving the Company or independent contractor of its Subsidiaries has occurred during the Companies past three years or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.is threatened.
(e) No labor organization or group of employees None of the Companies Company or any of their its Subsidiaries has made a pending demand for recognition or certificationincurred any material liability under, and there are no representation has complied in all material respects with, the Worker Adjustment Retraining and Notification Act and the regulations promulgated thereunder and any similar state laws and does not reasonably expect to incur any such liability as a result of actions taken or certification proceedings not taken prior to the date hereof.
(f) Except as set forth on Schedule 2.13(f) hereto or petitions seeking a representation proceeding presently pending or threatened to be brought or filedas disclosed in the SEC Reports, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies Company and its Subsidiaries is in compliance have complied in all material respects with all applicable laws laws, rules, regulations and collective bargaining agreements respecting employment and employment practices, executive orders governing the terms and conditions of employment, discriminatory practices with respect to employment, hiring and discharge, the employment of aliens, the payment of minimum wages and hours overtime, workplace health and occupational safety or otherwise relating to the conduct of employers with respect to employees and health.
(f) The Companies potential employees, and their except as set forth on Schedule 2.13, there have been no claims made or, to the Company's knowledge, threatened against the Company or its Subsidiaries do not maintain arising out of, relating to or alleging any material Company Benefit Plans (i) outside violation of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.foregoing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pharmaceutical Resources Inc), Stock Purchase Agreement (Merck Kgaa /Fi)
Employee Matters. (a) Except as set forth in Section 3.11 3.12(a) of the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any agreement pursuant to which either: (i) notice of termination, indemnity in lieu of notice of termination, severance, termination payments, change of control payments or other payments relating to the cessation of employment or services to any director, officer, employee, consultant or service provider may be required to be paid to terminate their employment or services; or (ii) any employee, service provider or consultant who is bound by confidentiality, non-competition or non-solicitation covenants with the Company or any of the Company Subsidiaries is relieved thereof as a result of the completion of the Transactions. Section 3.12(a) of the Company Disclosure Schedule contains a list of all employment, consulting and service agreements of the Company and any of the Company Subsidiaries with their employees, independent contractors, consultants and distributors, as the case may be. Section 3.12(a) of the Company Disclosure Schedule sets forth out the following information for each director, officer, employee, consultant or service provider who is entitled to receive any severance payment, termination payment, change of control payment or other payment as a trueresult of the Transactions: the name of the individual, his or her title and the amount of the payment he or she is entitled to receive. The Company and the Company Subsidiaries have made available to the Purchaser true and complete copies of all such written agreements and correct list true and complete descriptions of each “employee benefit plan” as defined in all such oral agreements.
b) Section 3(33.12(b) of the Employee Retirement Income Security Act Company Disclosure Schedule contains for all directors, officers and employees of 1974the Company and the Company Subsidiaries, as amended the following correct and complete lists: (“ERISA”)i) a list of all salaries, whether wage rates, commissions and consulting fees, bonus arrangements, deferred compensation, share or unit appreciation program, options, retention bonus, incentive and benefits; (ii) a list of all positions; (iii) a list indicating how many Persons work full-time and part-time; (iv) a list of their length of service; (v) a list setting out their respective vacation entitlement in days; and their entitlement to annual sick days; and (vi) a list of how many Persons are currently on lay off or on a leave of absence, together with the reasons for any such leave of absence and their expected date of return to work, if known.
c) There is no collective agreement in force with respect to the employees of the Company or the Company Subsidiaries, no collective agreement is currently being negotiated by the Company or any of the Company Subsidiaries, no union or employee bargaining agency or affiliated bargaining agent holds bargaining rights with respect to any of the employees of the Company or of the Company Subsidiaries by way of certification, interim certification, voluntary recognition, or successors’ rights, and there are no current, or to Company’s knowledge, threatened attempts to organize or establish any trade union or association with respect to the Company and the Company Subsidiaries, nor have there been any such attempts within the past five (5) years.
d) The Company and the Company Subsidiaries are not engaged in any unfair labour practices. There are no unfair labour practice complaints, grievances or arbitration proceedings outstanding nor to the Company’s knowledge, threatened against the Company or the Company Subsidiaries and there is no labour strike, slow down, work stoppage or lock-out in effect or to the Company’s knowledge, threatened against the Company and the Company Subsidiaries, nor has there been any such event within the past five (5) years.
e) All amounts due or owing or accrued but not yet owing for all salaries, wages bonuses, commissions and consulting fees, vacation pay, incentive plans, retention bonuses, options, pension, benefits or other employee benefits have been paid or, if accrued, are reflected in the Books and Records.
f) No terminated employee, independent contractor, consultant or distributor of the Company or the Company Subsidiaries is owed any payments in respect of such termination. For the purpose of clarity, the Company is solely responsible for, and will pay in full all amounts disclosed in Section 3.12(f) of the Company Disclosure Schedule in accordance with the terms of the respective severance agreements.
g) There are no outstanding assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing pursuant to any occupational health and safety legislation and no audit of the Company or of any of the Company Subsidiaries is currently being performed pursuant to any such applicable legislation. There are no claims or, to the Company’s knowledge, anticipated claims which may adversely affect the Company or any of the Company Subsidiaries’ accident cost experience in respect of the business.
h) To the knowledge of the Company, the Company and the Company Subsidiaries are not subject to ERISAany outstanding claims for wrongful dismissal, constructive dismissal, psychological harassment or any other claim, complaint or litigation relating to employment, discrimination or termination of employment of any of their employees or former employees or relating to any failure to hire a candidate for employment.
i) There is no Order, pursuant to any Law, requiring the taking of any action or the refraining from taking any action in respect of any employee or former employee, independent contractor, consultant or distributor of the Company or any of the Company Subsidiaries.
j) There is no outstanding Indebtedness owed by the Company or any of the Company Subsidiaries to any of their employees or former employees, independent contractors, consultants or distributors.
k) To the Company’s knowledge, no managerial employee and no group of employees of the Company or of any of the Company Subsidiaries have any plans to terminate his, her or their employment or their service relationship with the Company or any of the Company Subsidiaries.
l) Those Persons who have been classified as independent contractors, consultants or distributors have been properly classified as such, and each material employmentno audit is currently being performed by any Governmental Authority in respect of the characterization of such individuals as independent contractors, consultingconsultants or distributors of the Company or the Company Subsidiaries, and to the knowledge of the Company, no such audit is threatened.
m) Except for the Company Stock Option Plan, the Share Accumulation Plan and the Shares for Services and as set forth in Section 3.12(m) of the Company Disclosure Schedule: (i) there are no pension, retirement, profit sharing, bonus, incentive or savings, deferred compensation, vacationstock option, stock option purchase or appreciation, health, life insurance, disability, sick pay, severance pay, group insurance or other equity-basedemployee benefit plans, severanceprograms or arrangements maintained or contributed to by the Company or any of the Company Subsidiaries (collectively, terminationthe “Plans”); (ii) there are no outstanding material violations or defaults thereunder nor any actions, retention, change of control, profit-sharing, fringe benefit claims or other similar planproceedings outstanding or, programto the knowledge of the Company, agreement threatened with respect to any Plan; (iii) no Plan is currently under a governmental investigation or commitmentaudit and, whether written to the knowledge of the Company, no such investigation or unwrittenaudit has been threatened; (iv) each Plan covers only current or former employees of the Company and the Company Subsidiaries and their dependants and beneficiaries; (v) no promise or commitment to increase benefits under any Plan or to adopt any additional Plan has been made except as required by Law; (vi) no event has occurred which could subject the Company or any of the Company Subsidiaries to any material tax, penalty or fiduciary Liability in connection with any Plan which has not been accrued on the Annual Financial Statements; (vii) there have been no withdrawals of surplus or contribution holidays, except as permitted by Law and the terms of the Plans; and (viii) no other Plan provides post-employment and post-retirement benefits, other than as required by Law.
n) The Company is under no obligation and owes no money for the benefit of any “time in lieu” to any employee, former employee, director independent contractor or former director of consultant for any Company or any of its Subsidiaries entered into, maintained or contributed to time worked by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of Person for the Company Disclosure Schedule identifies in excess of normal working hours.
o) The Company and each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans Subsidiary has been operated complied and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with with, and has been during the three previous years and is, in all material respects, in good standing under all applicable laws and collective bargaining agreements respecting Laws relating to employment and employment practiceslabour matters, terms and including any provision thereof relating to wages, hours of work, vacation pay, overtime pay, conditions of employment, wages workers’ compensation, health, safety, training, human rights, equal opportunity, pay equity, or similar Laws and hours has properly completed and occupational safety and healthfiled all material reports required by such Laws.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Arrangement Agreement (Acorn Energy, Inc.), Arrangement Agreement (Acorn Energy, Inc.)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company All Benefit Plans has have been operated maintained and administered in all material respects in accordance with their terms and applicable lawLaw, includingand there are no pending or, but to the Knowledge of the Company, threatened claims, audits, investigations, inquiries or proceedings against the Benefit Plans, any related trusts, any Benefit Plan sponsor or plan administrator, or any fiduciary of the Benefit Plans with respect to the operation of such plans (other than routine benefit claims). With respect to each Benefit Plan, the Company and each Company Subsidiary have prepared in good faith and timely filed all requisite governmental reports (which were, to the Knowledge of the Company, true and correct as of the date filed).
(b) Without limiting anything in this Section 5.12, in the case of Company Sub, except for pension payments required to be paid to the state under the Laws of the Russian Federation, Company Sub does not limited maintain or contribute to, ERISAhas no obligation to contribute to, and has no liability under any pension, severance, termination or similar Benefit Plan, or a pension plan sponsored by any ERISA Affiliate of the Code and in each case Company, providing benefits to any current or former employee, consultant, or director of Company Sub. Company Sub has timely made full payment of all pension payments required to be paid to the regulations thereunder; state under the Laws of the Russian Federation.
(iic) each Company Each Benefit Plan that is intended to be “qualified” within the meaning of qualify under Section 401(a) 401 of the Internal Revenue Code of 1986, as amended (the “Code”), and each trust maintained pursuant thereto, has received a favorable determination or opinion letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge Knowledge of Sellerthe Company, there is not any reason why any such determination letter should be revoked; (iii) nothing has occurred with respect to each Company the operation of any such Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of could cause the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets loss of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planqualification.
(d) Neither the execution or and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, hereby (either alone or of in conjunction with any other another event, such as a termination of employment) will (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, current or former director or current or former employee or independent contractor of the Companies Company or any of their its Subsidiaries under any Benefit Plan or to such individuals in the aggregateotherwise, (ii) materially increase the amount or value of any benefit or compensation benefits otherwise payable or required to be provided to under any such director, employee or independent contractorCompany Benefit Plan, (iii) result in the any acceleration of the time of payment, vesting, exercisability payment or funding vesting of any such benefit benefits, or compensation, (iv) result in any material limitation on the right an “excess parachute payment” under Section 280G of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Code.
(e) No labor organization Without limiting the representations and warranties contained in Section 5.5, except as would not reasonably be expected to have, individually or group of employees of in the Companies or any of their Subsidiaries has made aggregate, a pending demand for recognition or certificationCompany Material Adverse Effect, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies Company and its Subsidiaries is are in compliance in all material respects with all applicable laws and collective bargaining agreements respecting Laws relating to employment and employment practices, wages, hours and terms and conditions of employment, wages and hours and occupational safety and health.
(f) The Companies and their Subsidiaries do not maintain Without limiting the foregoing or any material Company Benefit Plans (i) outside of the U.S. or other representations and warranties of the Company in this Agreement, Company Sub has made all payments (ii) for the benefit of any individual whose principal place kind) to its employees in accordance with the terms and conditions of applicable employment is outside of the U.S.contracts and paid or withheld all applicable Taxes applicable to such payments (including without limitation social taxes and income taxes).
Appears in 2 contracts
Samples: Merger Agreement (Moscow Cablecom Corp), Merger Agreement (Renova Media Enterprises Ltd.)
Employee Matters. (a) Section 3.11 4.13(a) of the Company Disclosure Schedule sets forth a truecorrect and complete list, complete as of the Execution Date, of each material Benefit Plan. Section 4.13(a) of the Company Disclosure Schedule separately designates each such material Benefit Plan that is maintained or sponsored by any member of the Company Group (each Benefit Plan that is maintained or sponsored by any member of the Company Group, but for the avoidance of doubt excluding any PEO Benefit Plans, a “Company Benefit Plan”), and correct list of separately designates each such material Benefit Plan that is maintained, sponsored, or provided by a professional employer organization (“PEO”, and each Benefit Plan maintained, sponsored or provided by a professional employer organization, a “PEO Benefit Plan”). A “Benefit Plan” is each “employee benefit plan” (as such term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material any bonus, retention, change in control, deferred compensation, incentive compensation, commission, equity purchase, option, restricted equity, equity appreciation, phantom equity or other equity or equity-related, severance or termination pay, employment, consulting, bonushospitalization, incentive or deferred compensationmedical, vacationlife, stock option or other equity-baseddisability, severancesupplemental unemployment benefits, terminationpaid time off, retention, change of controlleave, profit-sharing, fringe benefit or other similar pension, retirement plan, program, agreement policy or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributearrangement, or with respect to which any Company other benefit or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, program, policy or arrangement, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payablemaintained, sponsored, contributed to or required to be provided, contributed to by any director, employee or independent contractor member of the Companies Company Group or any of their Subsidiaries its Affiliates with respect to or in consideration for any Company Group Employee’s services provided to such individuals in the aggregateCompany Group, (ii) materially increase with respect to which the amount Company Group has or value of could have any benefit direct or compensation otherwise payable indirect liability or required obligation, whether actual or contingent, or (iii) providing any present or future right to be provided benefits to any such Company Group Employee (or their respective beneficiaries) or any director, employee or leased employee, independent contractor, consultant, or agent (iiior their respective beneficiaries) result in the acceleration of the time of paymentCompany Group, vesting, exercisability with respect to or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate consideration for any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Group Employee’s services provided to the Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthGroup .
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Roivant Sciences Ltd.), Agreement and Plan of Merger (Organon & Co.)
Employee Matters. Schedule 3.18 lists the names of all employees affiliated with the Branches (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit PlansBranch Employees”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day date of the most recent plan year ended prior to the date hereofthis Agreement and states for each such individual his or her position, as dates of the date hereof and as of the Closing Dateemployment with Seller, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination years of service, other than and present compensation. Except for agreements that are generally required by Seller of its employees, no Branch Employee is a party to, or is otherwise bound by, any employment contract, agreement or arrangement, including any confidentiality, noncompetition, or proprietary rights agreement, between such employee and Seller, or to Seller’s Knowledge between any such employee and any third party, that in any way adversely affects or shall affect (Aa) coverage mandated by applicable law the performance of his or her duties as a Branch Employee, or (Bb) death benefits or retirement benefits the ability of the Branches to conduct business. Buyer shall not incur any liability under any “employee pension plan” (severance agreement, deferred compensation agreement, employment agreement, or similar agreement or plan solely as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees result of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or except as otherwise set forth in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, this Agreement. No employee or independent contractor of at the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value Branches is covered by a collective bargaining agreement. Seller is unaware of any benefit efforts during the past three years to unionize any employees at the Branches. In relation to the Branches and to Seller’s Knowledge, no causes of action, claims, charges or compensation otherwise payable administrative investigations for wrongful discharge, violation of employment contract or required to be provided to employment claims based upon any such directorstate or federal law, employee statute, public policy, order or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, and there regulation are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of Seller. In relation to the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance Branches, Seller has complied in all material respects with all applicable laws and relating to the employment of labor, including provisions relating to wages, hours, collective bargaining agreements respecting employment and employment practicesthe payment of social security or other Taxes, and worker’s compensation or other insurance premiums. Seller agrees that Buyer shall not be bound to the terms and conditions of any existing employment, wages management, consulting, reimbursement, retirement, early retirement or similar agreement, whether active on the Closing Date or in discussion or negotiation, between Seller and hours and occupational safety and healthany Branch Employee.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Branch Purchase and Assumption Agreement (Simmons First National Corp), Branch Purchase and Assumption Agreement (Spirit of Texas Bancshares, Inc.)
Employee Matters. (a) Section 3.11 of the The Company Disclosure Schedule sets forth a true, complete and correct list of each has listed any “employee benefit plan” as defined in Section 3(3(except for personal benefit plans) of subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject that it maintains for employees as an exhibit to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)SEC Report.
(b) (i) Each No director or officer or other employee of the Company will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting) or lapse of repurchase rights or obligations with respect to any employee benefit plan subject to ERISA or other benefit under any compensation plan or arrangement of the Company (each, an “Employee Benefit Plans has been operated Plan”) solely as a result of the transactions contemplated by this Agreement; and administered (ii) no payment made or to be made to any current or former employee or director of the Company, or any of its Affiliates by reason of the transactions contemplated hereby (whether alone or in all material respects in accordance connection with applicable lawany other event, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (iia termination of employment) each Company Benefit Plan intended to be will constitute an “qualifiedexcess parachute payment” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 280G of the Code.
(c) Neither No officer or employee of the Companies nor Company, to the knowledge of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant, and, to the knowledge of the Company, the continued employment of each such officer or employee does not subject the Company or any Subsidiary to any material liability with respect to any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planforegoing matters.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any The Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, and there each Subsidiary are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable federal, state, local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments, orders and collective bargaining agreements codes respecting employment and employment, employment practices, labor, terms and conditions of employment, employment and wages and hours hours, and occupational safety and health.
(f) The Companies and their Subsidiaries do not maintain no work stoppage or labor strike against the Company or any material Company Benefit Plans (i) outside Subsidiary is pending or, to the knowledge of the U.S. Company, threatened, nor is the Company or (ii) for any Subsidiary involved in or, to the benefit of any individual whose principal place of employment is outside knowledge of the U.S.Company, threatened with any labor dispute, grievance or litigation relating to labor matters involving any employees of the Company or any Subsidiary, except for any of the foregoing which would not have a Material Adverse Effect. To the Company’s knowledge, there are no suits, actions, disputes, claims (other than routine claims for benefits), investigations or audits pending or, to the knowledge of the Company, threatened in connection with any Employee Benefit Plan.
Appears in 2 contracts
Samples: Redeemable Convertible Preferred Stock and Warrant Purchase Agreement (Telesis Bio Inc.), Redeemable Convertible Preferred Stock Purchase Agreement (Dicerna Pharmaceuticals Inc)
Employee Matters. (a) Section 3.11 of the Company MBNA Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, commitment for the benefit of any employee, former employee, director or former director of any Company MBNA or any of its Subsidiaries entered into, maintained or contributed to by any Company MBNA or any of its Subsidiaries or to which any Company MBNA or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof contribute (such plans, programs, agreements and commitments, herein referred to as the “Company MBNA Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) With respect to each MBNA Benefit Plan, MBNA has made available to Bank of America true, complete and correct copies of the following (as applicable): (i) Each of the Company written document evidencing such MBNA Benefit Plans has been operated and administered Plan or, with respect to any such plan that is not in all material respects in accordance with applicable lawwriting, including, but not limited to, ERISA, the Code and in each case the regulations thereundera written description thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter from the IRS; (v) the most recent Form 5500 required to have been filed with the IRS, including all schedules thereto; (vi) any related trust agreements, insurance contracts or documents of any other funding arrangements; (vii) any notices to or from the IRS or any office or representative of the Department of Labor relating to any compliance issues in respect of any such MBNA Benefit Plan; and (viii) all amendments, modifications or supplements to any such document.
(c) MBNA and each Company of its Subsidiaries have operated and administered each MBNA Benefit Plan in compliance with all applicable laws and the terms of each such plan. The terms of each MBNA Benefit Plan are in compliance with all applicable laws. Each MBNA Benefit Plan that is intended to be “qualified” within the meaning of under Section 401(a) 401 and/or 409 of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for IRS to such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, effect and, to the knowledge of SellerMBNA, there is not any reason why any no fact, circumstance or event has occurred or exists since the date of such determination letter should that would reasonably be revoked; (iii) with respect expected to each Company adversely affect the qualified status of any such MBNA Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the CodePlan. There are no pending or, (A) as of the last day of the most recent plan year ended prior to the date hereof, as knowledge of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pendingMBNA, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company MBNA Benefit Plans or any trusts related thereto which assets thereof (other than routine claims for benefits). All contributions, premiums and other payments required to be made with respect to any MBNA Benefit Plan have been made on or before their due dates under applicable law and the terms of such MBNA Benefit Plan, and with respect to any such contributions, premiums or other payments required to be made with respect to any MBNA Benefit Plan that are not yet due, to the extent required by GAAP, adequate reserves are reflected on the consolidated balance sheet of MBNA included in the Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2005 (including any notes thereto) or liability therefor was incurred in the ordinary course of business consistent with past practice since March 31, 2005.
(d) No MBNA Benefit Plan is subject to Section 412 of the Code or Section 302 or Title IV of ERISA or is a multiemployer plan or multiple employer plan within the meaning of Sections 4001(a)(3) or 4063/4064 of ERISA, respectively. Neither MBNA nor any of its Subsidiaries has incurred, either directly or indirectly (including as a result of any indemnification or joint and several liability obligation), any liability pursuant to Title I or IV of ERISA or the penalty tax, excise tax or joint and several liability provisions of the Code relating to employee benefit plans, in each case, with respect to the MBNA Benefit Plans and no event, transaction or condition has occurred or exists that could reasonably be expected to result in any material such liability of the Companies to MBNA or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeits Subsidiaries.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(de) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies MBNA or any of their Subsidiaries or to such individuals in the aggregateits Subsidiaries, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability vesting or funding of any such benefit or compensation, compensation or (iv) result in any material limitation on the right amount failing to be deductible by reason of Section 280G of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthCode.
(f) The Companies and their No payment made or to be made in respect of any employee or former employee of MBNA or any of its Subsidiaries do not maintain any material Company Benefit Plans (iis or will be nondeductible by reason of Section 162(m) outside of the U.S. Code.
(g) Neither MBNA nor any of its Subsidiaries is a party to or (ii) for bound by any labor or collective bargaining agreement and there are no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit with respect to, or otherwise attempting to represent, any of the benefit employees of MBNA or any of its Subsidiaries. There are no labor related controversies, strikes, slowdowns, walkouts or other work stoppages pending or, to the knowledge of MBNA, threatened and neither MBNA nor any of its Subsidiaries has experienced any such labor related controversy, strike, slowdown, walkout or other work stoppage within the past three years. Neither MBNA nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to employees or employment practices. Each of MBNA and its Subsidiaries are in compliance with all applicable laws, statutes, orders, rules, regulations, policies or guidelines of any individual whose principal place Governmental Entity relating to labor, employment, termination of employment is outside of the U.S.or similar matters and have not engaged in any unfair labor practices or similar prohibited practices.
Appears in 2 contracts
Samples: Merger Agreement (Mbna Corp), Merger Agreement (Bank of America Corp /De/)
Employee Matters. (a) Section 3.11 The Company has provided to Buyer a complete list of all current employees of the Company Disclosure Schedule sets forth a trueand each Subsidiary and each such individual’s current title, complete job description, service dates, compensation (base compensation and correct list bonuses), vacation entitlement and benefits, which shall also include all employees on inactive status, including lay-off, short or long-term disability leave, maternity or parental leave, sick leave or other extended absence, or receiving benefits pursuant to workers compensation, including information relative to the last date of active employment, the reason for the absence and the expected date of return of each “employee benefit plan” as defined in Section 3(3) of such employee. All independent contractors providing services to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any Subsidiary have been properly classified as independent contractors for purposes of its Subsidiaries entered intofederal and applicable state or provincial tax laws, maintained laws applicable to employee benefits, employment or contributed labour standards laws and other applicable law. Except as set forth in Section 4.11 of the Disclosure Schedule, neither the Company nor any Subsidiary has any employment or consulting arrangements or agreements currently in effect that are not terminable by the Company without liability to by any the Company or any Subsidiary other than severance obligations under Applicable Law or the related contract. Except as disclosed in Section 4.11 of its the Disclosure Schedule, none of the Company or the Subsidiaries have (a) entered into any arrangements or agreements that obligates or purports to which any obligate the Company or any Subsidiary to make an offer of its Subsidiaries is obligated employment to contribute, any present or with respect to which any former employee of the Company or any of its Subsidiaries has Subsidiary or (b) promised or otherwise provided any liability, direct or indirect, assurances (contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementotherwise) or otherwise providing benefits to any current, present or former or future employee, officer or director employee of any the Company or any Subsidiary of its Subsidiaries any terms or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 conditions of employment with the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor Subsidiary following the consummation of the transactions contemplated by this Agreement will, either alone and the Related Agreements. Section 4.11 of the Disclosure Schedule identifies the entity among the Company and its Subsidiaries which is the employer or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any directorco-contractor of each, employee or and independent contractor of the Companies or any of their Subsidiaries or to such individuals in Company and the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Subsidiaries.
(eb) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, The Company and there each Subsidiary are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements Applicable Laws respecting employment and employment, employment practices, terms and conditions of employment, wages worker classification, statutory deductions and hours and occupational withholdings, prohibited discrimination, equal employment, fair employment practices, immigration status, employee safety and health.
(f) The Companies , workers’ compensation and their Subsidiaries do not maintain any material Company Benefit Plans wages and hours, and in each case, with respect to employees: (i) outside of the U.S. have withheld and reported and remitted all amounts required by law or by agreement to be withheld and reported and remitted with respect to wages, salaries and other payments to employees, (ii) are not liable for any: arrears of wages, indemnity in lieu of notice, severance pay or any Taxes or any penalty for failure to comply with any of the benefit foregoing, and (iii) are not liable for any payments, levies, assessments, dues or penalties to any governmental authority, trust or other fund governed by or maintained by or on behalf of any individual whose principal place governmental authority, with respect to unemployment compensation benefits, social security, employment insurance, parental insurance, workers compensation, health premiums or other benefits or obligations for employees (other than routine payments to be made in the normal course of employment is outside business and consistent with past practice). To the Knowledge of the U.S.Company, there is no reasonable basis for any employment-related action, suit, proceeding, union certification applications, claims, complaints, hearings, arbitrations or investigations of, in or before any agency, commission, court, tribunal or quasi-judicial or administrative agency of any federal, state, provincial, local or foreign jurisdiction or before any arbitrator involving the Company or any Subsidiary (including, for avoidance of doubt, with respect to any of the Stockholders, collectively, “Employment Claims”). No Employment Claims, whether under Applicable Laws or otherwise, are currently pending.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Upland Software, Inc.)
Employee Matters. (a) Section 3.11 3.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacationvacation or other paid time off, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, welfare benefit, fringe benefit benefit, retirement or other similar plan, program, agreement agreement, arrangement or commitment, whether written or unwritten, commitment for the benefit of any employee, former employee, director or former director of any the Company or any of its Subsidiaries entered into, maintained or contributed to, or required to be maintained or contributed to by any Company or the Company, any of its Subsidiaries or to which any Company Person or any of its Subsidiaries entity that, together with the Company, is obligated to contributetreated as a single employer under Section 414(b), or with respect to which any Company or any of its Subsidiaries has any liability(c), direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementm) or otherwise providing benefits to any current(o) of the Code, former (each such person or future employeeentity, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof an “ERISA Affiliate”) (such plans, programs, agreements agreements, arrangements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) With respect to each Company Benefit Plan, the Company has made available to Buyer true, complete and correct copies of the following (as applicable): (i) the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, (ii) the summary plan description, (iii) the two (2) most recent annual reports, financial statements and/or actuarial reports, (iv) the most recent determination letter from the IRS, (v) the two (2) most recent Form 5500s required to have been filed with the IRS, including all schedules thereto and (vi) any related trust agreements or documents of any other funding arrangements.
(i) Each Company Benefit Plan has been administered in accordance with its terms in all material respects, (ii) all Company Benefit Plans are in compliance with the applicable provisions of ERISA, the Code and all other applicable laws, including Section 409A of the Code in all material respects, (iii) no non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) has occurred with respect to any Company Benefit Plan, (iv) all contributions to, and payments from, the Company Benefit Plans have been made in accordance with the terms of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited toPlans, ERISA, the Code and all other applicable laws in each case all material respects, (v) in all material respects all reports, returns and similar documents with respect to the regulations thereunder; (ii) each Company Benefit Plans required to be filed with any Governmental Entity or distributed to any Company Benefit Plan intended participant have been duly and timely filed or distributed and (vi) there are no current or, to be “qualified” the Company’s knowledge, threatened investigations by any Governmental Entity, termination proceedings, or other claims by any Person (except routine claims for benefits) with respect to the Company Benefit Plans.
(d) None of the Company Benefit Plans are pension benefit plans (within the meaning of Section 401(aERISA) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability liability has been incurred by any Company, any of its Subsidiaries the Company or any ERISA Affiliate under Title IV of their respective ERISA Affiliates that has not been satisfied in full, full and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to . No Company Benefit Plan is a “multiemployer pension plan” plan (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each ). No Company Benefit Plan in respect provides for healthcare benefits after termination of current employment or prior plan years have been paid service as a director, except as required by applicable law.
(e) Neither the execution of this Agreement, nor the consummation of the transactions contemplated hereby (either alone or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which any event) will (i) entitle any employee of the Companies Company or its Subsidiaries to severance pay or any increase in severance pay upon any termination of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to employment after the date hereof, except as set forth in Section 409 or 502(i3.11(e)(i) of ERISA the Company Disclosure Schedule, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material tax imposed obligation pursuant to Section 4975 or 4976 to, any of the Code; and Company Benefit Plans, except as set forth in Section 3.11(e)(ii) of the Company Disclosure Schedule, (ixiii) there is no pendinglimit or restrict the right of the Company or its Subsidiaries to merge, threatened amend or anticipated claim (other than routine claims for benefits) by, on behalf of or against terminate any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to (iv) result in payments by the Company or its Subsidiaries under any material liability of the Companies Company Benefit Plans which would not be deductible by the Company or its Subsidiaries under Section 162(m) or Section 280G of the Code, except as set forth in Schedule 3.11(e)(iv) of the Company Disclosure Schedule.
(f) Neither the Company nor any of its Subsidiaries is a party to or bound by any labor or collective bargaining agreement and there are no organizational campaigns, petitions or other activities or proceedings of any labor union, workers’ council or labor organization seeking recognition of a collective bargaining unit with respect to, or otherwise attempting to represent, any of the employees of the Company or any of their its Subsidiaries andor compel the Company or any of its Subsidiaries to bargain with any such labor union, works council or labor organization. There are no labor related controversies, strikes, slowdowns, walkouts or other work stoppages pending or, to the knowledge of Sellerthe Company, there is no existing conditionthreatened and neither the Company nor any of its Subsidiaries has experienced any such labor related controversy, situation strike, slowdown, walkout or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” other work stoppage within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codepast three years.
(cg) Neither the Companies Company nor any of their its Subsidiaries willis a party to, on and after the Closingor otherwise bound by, have any liabilities consent decree with, or obligations for citation by, any Company Benefit Plan which is not an Assumed Plan Governmental Entity relating to employees or a LFG Deferred Compensation Planemployment practices. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies Company and its Subsidiaries is are in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and employment practicesrelating to labor, terms and conditions of employment, termination of employment or similar matters, including but not limited to laws relating to discrimination, disability, labor relations, hours of work, payment of wages and hours and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health.
(f) The Companies , family and their Subsidiaries do medical leave, and employee terminations, and have not maintain engaged in any material Company Benefit Plans (i) outside of the U.S. unfair labor practices or similar prohibited practices and (ii) for the benefit there are no complaints, lawsuits, arbitrations, administrative proceedings, or other proceedings of any individual whose principal place of employment is outside nature pending or, to the knowledge of the U.S.Company, threatened against the Company or any of its Subsidiaries brought by or on behalf of any applicant for employment, any current or former employee, any person alleging to be a current or former employee, any class of the foregoing, or any Governmental Entity, relating to any such law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
Appears in 2 contracts
Samples: Merger Agreement (Prospect Capital Corp), Merger Agreement (Patriot Capital Funding, Inc.)
Employee Matters. Section 2.17 of the Schedule of Exceptions sets forth an accurate list of any material compensation or benefit plan or agreement (including any employee benefit plan, program, policy, agreement or contract providing benefits to any current or former employee, officer or director of it or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by it or any of its Subsidiaries or to which it or any of its Subsidiaries contributes or is obligated to contribute (other than government-based plans), including any “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA), all employment or severance agreements, and any bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, change of control or fringe benefit plans, programs or policies (any of the foregoing a “Benefit Plan”) of the Company and its Subsidiaries. There do not now exist, and to the Company’s knowledge, there are no existing circumstances that could reasonably be expected to result in, any liabilities (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) under Title IV of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder (“ERISA”), whether (b) under Section 302 of ERISA, (c) under Sections 412 and 4971 of the Code, (d) for violation of the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or not subject to the group health requirements of Sections 9801 et seq. of the Code and Sections 701 et seq. of ERISA, and each material employment, consulting, bonus, incentive (e) under corresponding or deferred compensation, vacation, stock option similar provisions of foreign laws or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for regulations (any such liability a “Controlled Group Liability”) to the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoexcept for those that, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect on the Company. No Benefit Plan maintained or contributed to by any the Company or any of its Subsidiaries or to which any the Company or any of its Subsidiaries is obligated required to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise contribute (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iiiplan a “Company’s Benefit Plan”) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.4001(a)(3)
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Pluristem Life Systems Inc), Common Stock and Warrant Purchase Agreement (Pluristem Life Systems Inc)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule (which shall be delivered by Company to Parent within five business days following the date hereof), sets forth a true, complete and correct list of each material “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) Each each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Sellerthe Company, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) or, if such liabilities did exceed such assets, the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof thereof was properly reflected on the financial statements of Seller Company or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of the Company or any Company or its Subsidiaries Subsidiary beyond their retirement or other termination of service, other than (A1) coverage mandated by applicable law or (B2) death benefits or retirement benefits under any “"employee pension plan” " (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any the Company, any of its Subsidiaries a Company Subsidiary or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the CompaniesCompany, their Subsidiaries a Company Subsidiary or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies Company nor any of their Subsidiaries Company Subsidiary contributes on behalf of employees of the Companies Company or any of their Subsidiaries Company Subsidiary to a “"multiemployer pension plan” " (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies Company or any of their Subsidiaries a Company Subsidiary with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies Company nor any of their Subsidiaries a Company Subsidiary has engaged in a transaction in connection with which the Companies Company or any of their Subsidiaries a Company Subsidiary reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is are no pending, threatened or anticipated claim claims (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies Company or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Company Subsidiary.
(c) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, Code has been operated in compliance in all material respects with Section 409A of the Code since January 1, 20052006, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, Code and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(cd) Neither Except as would not, individually or in the Companies nor any aggregate, reasonably be expected to have a Material Adverse Effect, all Company Options have been granted in compliance with the terms of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any applicable Company Benefit Plan which is not an Assumed Plan Plans, with applicable law, and with the applicable provisions of the Company Certificate and Company Bylaws as in effect at the applicable time, and all such Company Options are accurately disclosed as required under applicable law in the Company SEC Reports, including the financial statements contained therein or attached thereto (if amended or superseded by a LFG Deferred Compensation Plan. For filing with the avoidance SEC made prior to the date of doubtthis Agreement, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planas so amended or superseded).
(de) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies Company or any of their its Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability vesting or funding of any such benefit or compensation, compensation or (iv) result in any material limitation on the right of the Companies Company or any of their its Subsidiaries to amend, merge or or, terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Code.
(ef) No labor organization or group of employees of the Companies Company or any of their Subsidiaries 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, material arbitrations or material grievances, or other material labor disputes pending or threatened against or involving any of the Companies Company or any of their Subsidiariesits subsidiaries. Each Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each of the Companies Company and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Bank of America Corp /De/), Merger Agreement (Merrill Lynch & Co., Inc.)
Employee Matters. (a) Section 3.11 3.08(a) of the Company Disclosure Schedule sets forth contains a true, complete and correct accurate list of each “all Benefit Plans, copies of which have been made available to the Purchaser. Other than the Benefit Plans listed on Section 3.08(a) of the Disclosure Schedule, neither the Company nor any Subsidiary currently maintains, contributes to, or has any liability under, any Benefit Plan. Each Benefit Plan which is an "employee pension benefit plan” as defined in " within the meaning of Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") (a "Pension Plan"), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code, has received is subject to a current favorable tax-determination letter from the Internal Revenue ServiceIRS, or has pending an application for such determination from and no events have occurred that could adversely affect in any material respect the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) qualified status of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Pension Plan. No Benefit Plan that (i) is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the CodeERISA, (Aii) is a "multiemployer plan" as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits defined under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA, and/or (iii) except as required by statute or as set forth on Schedule 3.08(a), provides for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof and/or (iv) is a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; ERISA (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim"Multiple Employer Plan"). Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, Transactions will (ix) result in in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any material payment or benefit becoming due or payable, or required to be provided, to any officer, director, employee or independent contractor of the Companies Company or any of their Subsidiaries the Subsidiaries, or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (ivy) result in any material limitation on the right of the Companies or any of their Subsidiaries Person to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) Without limiting the reimbursement of excise Taxes under Section 4999 generality of the Code foregoing, no amount paid or any income Taxes under payable (whether in cash, in property, or in the Code or (Bform of benefits) payments that would in connection with the Transactions will be non-deductible under Code Sections 162(m) or 280G.an "excess parachute payment" within the meaning of Section 280G of the Code. The Company has provided to the Purchaser prior to the date hereof materially accurate information identifying all current officers, employees and independent contractors of the Company and its Subsidiaries by name and years of service.
(eb) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding There is not presently pending or threatened existing with respect to be brought the Company or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. any strike, slowdown, picketing or work stoppage or (ii) any application for the benefit certification of any individual whose principal place of employment is outside a collective bargaining agent or similar entity or individual. None of the U.S.Seller, the Company or any of the Subsidiaries is a party, or otherwise subject to, any collective bargaining agreement with any labor union or association representing employees of the Company or any Subsidiary.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Triad Financial Corp), Stock Purchase Agreement (Triad Financial Corp)
Employee Matters. Except as set forth in Schedule 3.11 to the ACT Disclosure Letter:
(a) Section 3.11 of Schedule 3.11(a) to the Company ACT Disclosure Schedule sets forth Letter contains a true, true and complete and correct list of each “employee benefit plan” as defined , policy or agreement covering employees, former employees or directors of any of ACT or its Subsidiaries or their beneficiaries, or providing benefits to such persons in respect of services provided to any such entity, including without limitation any employee benefit plans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to ERISA, and each material any employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, severance or change of controlin control agreement, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoin each case that is sponsored, maintained or contributed to or required to be contributed to by any Company ACT or any of its Subsidiaries or to which by any Company trade or business, whether or not incorporated (an "ACT ERISA Affiliate") that, together with any of its Subsidiaries is obligated such Subsidiaries, would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA (collectively, the "ACT Benefit Plans"). Other than as set forth in Schedule 3.11(a) to contributethe ACT Disclosure Letter, since December 31, 1998, there have been no new plans adopted, nor changes, additions or with respect modification to which any Company or ACT Benefit Plan. As of the date hereof, neither ACT nor any of its Subsidiaries has any liabilityplans to adopt, direct change, add or indirectmodify any ACT Benefit Plan, contingent nor has any such entity communicated with any current or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)employer with respect thereto.
(b) With respect to each ACT Benefit Plan, ACT has previously delivered or made available to ICH or its representatives true and complete copies of the following: (i) the plan document and all amendments thereto (or, if such plan is unwritten, a true and complete summary of its terms); (ii) any related trust or other funding vehicle; (iii) if applicable, the two most recent IRS Forms 5500 and related attachments; (iv) if applicable, the most recent IRS determination letter; and (v) any material correspondence or employee communications.
(c) All contributions and other payments required to have been made by ACT or one of its Subsidiaries to any ACT Benefit Plan (or to any Person pursuant to the terms thereof) have been made or the amount of such payment or contribution obligation has been reflected in the financial statements in ACT's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999 (the "ACT First Quarter 10-Q").
(d) Each of the Company ACT Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b501(c)(9) of the Code has not expiredbeen determined by the IRS to be so qualified, and, and no circumstances exist that could reasonably be expected to result in the knowledge revocation of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 determination. Each of the CodeACT Benefit Plans is and has been operated in all material respects in compliance with its terms and all applicable laws, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof rules and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of regulations governing such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitsplan, including, without limitation, death ERISA and the Code.
(e) With respect to the ACT Benefit Plans, individually and in the aggregate, no event has occurred, there does not now exist any condition or medical set of circumstances, that could reasonably be expected to subject ACT, any of its Subsidiaries or any ACT ERISA Affiliate to any material liability arising under the Code, ERISA or any other applicable law, or under any indemnity agreement to which ACT, any of its Subsidiaries or any ACT ERISA Affiliate is a party, excluding liability relating to benefit claims and funding obligations payable in the ordinary course.
(f) Other than continuation coverage required to be provided under Section 4980B of the Code or Part 6 of Title I of ERISA or otherwise as provided by state law, none of the ACT Benefit Plans that are "welfare plans," within the meaning of Section 3(1) of ERISA, provides for any benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries for periods extending beyond their retirement or other termination of service, other than (A) coverage mandated benefits the full cost of which is borne by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeformer employees.
(cg) Neither the Companies nor any of their Subsidiaries willExcept as otherwise disclosed to ICH, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement willMerger will not, either alone or in conjunction combination with another event undertaken by ACT or any other eventof its Subsidiaries prior to the date hereof, (i) result in entitle any material payment current or benefit becoming due or payableformer employee, or required to be providedagent, to any director, employee or independent contractor or officer of the Companies ACT or its Subsidiaries to severance pay, unemployment compensation or any of their Subsidiaries or to such individuals in the aggregateother payment, (ii) materially accelerate the time of payment or vesting or increase the amount or value of any benefit or compensation otherwise payable or required to be provided to due any such directoremployee, employee officer, agent or independent contractor, contractor or (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered constitute a "change in control for any purpose control" under any Company ACT Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthPlan.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Amresco Capital Trust), Merger Agreement (Impac Commercial Holdings Inc)
Employee Matters. Except as set forth on the Disclosure Schedule, or as otherwise provided in this Agreement:
(ai) Section 3.11 All legally enforceable obligations of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)WWC, whether arising by operation of law, contract, Agreement or not subject to ERISAotherwise, for salaries, wages, vacation and each material employmentholiday pay, consulting, bonussick pay, incentive or compensation, deferred compensation, vacation, stock option sales compensation and bonuses or other equity-based, severance, termination, retention, change forms of control, profit-sharing, fringe benefit compensation or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to benefits which any Company or any of its Subsidiaries is obligated to contributeare, or with respect may become, payable to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees employees, directors, officers, agents or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than individual (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in fulldependents, and no condition exists that presents a risk to the Companiesheirs, their Subsidiaries legatees, beneficiaries or any of their respective ERISA Affiliates of incurring any such liability; (vilegal representatives) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current periods ending on or prior plan years before the Closing, have been paid paid, if due, or accrued adequate accruals, if accruals are required, in accordance with generally accepted accounting principles; , for such payments will be made prior to the Closing.
(viiiii) neither WWC does not have any plan, program, arrangement, Agreement or obligation to provide benefits in the Companies nor form of bonus, incentive, deferred compensation, dental, stock options, medical, disability, hospitalization, insurance, death benefits or any other employee benefits of their Subsidiaries has engaged in a transaction in connection with any kind whatsoever, which the Companies requires WWC to provide benefits to its employees, directors, officers, agents or any other individuals (or any of their Subsidiaries reasonably could be subject respective dependents, heirs, legatees, beneficiaries or legal representatives).
(iii) WWC has complied, and through the Closing will continue to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 comply, with the provisions of the Code; and Consolidated Omnibus Reconciliation Act of 1985, as amended (ix) there is no pending"COBRA"), threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, relating to the knowledge continuation of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1insurance coverage for former employees and their dependents.
(iv) of the Code and any award thereunder, in each case that is subject to Section 409A WWC has complied with all material requirements of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the CodeERISA and other applicable federal and state laws, and the regulations promulgated thereunder, which relate to any employees, former employees or beneficiaries of such employees, or to any salary, bonus, incentive compensation, deferred compensation, sales compensation, ERISA Plans or other employee benefit plan or similar arrangement binding upon WWC (B)(1) whether or not existing on the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of date hereof or at the CodeClosing).
(cv) Neither the Companies nor WWC has no policies, plans or agreements with respect to payments of severance pay to employees which could require any of their Subsidiaries will, on and after payments or severance pay to any employees terminated subsequent to the Closing, . No employee terminated by WWC on or prior to the Closing has or will have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planright to severance pay.
(dvi) Neither the execution or delivery of this Agreement Agreement, nor the consummation of the transactions contemplated by this Agreement willhereby, either alone or in conjunction with any other event, will (i1) result in any material payment payment, including severance, unemployment compensation, golden parachute or benefit otherwise, becoming due under any employee benefit plan or payableotherwise, (2) increase any benefits otherwise payable under any such employee benefit plan, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii3) result in the acceleration of the time of payment, vesting, exercisability payment or funding vesting of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthbenefits thereunder.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Worldport Communications Inc), Merger Agreement (Worldport Communications Inc)
Employee Matters. (a) Section 3.11 4.10(a) of the Company Disclosure Schedule sets forth a true, complete and correct list lists as of each “the date of this Agreement (i) all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, ) and each material employment, consulting, all bonus, incentive or stock option, stock purchase, restricted stock, incentive, deferred compensation, vacationretiree medical or life insurance, stock option or other equity-basedsupplemental retirement, fringe benefit, paid time off, severance, change in control or other benefit plans, programs or arrangements, and all employment, termination, retentionseverance, change of control, profit-sharing, fringe benefit in control or other similar plancontracts, programarrangements or agreements to which the Company or any Subsidiary of the Company is a party or which are maintained, contributed to or sponsored by the Company or any Subsidiary of the Company or any third-party that is considered an employer or co-employer of the employees of the Company or any Subsidiary of the Company pursuant to a contract, agreement or commitment, whether written arrangement with the Company or unwritten, any Subsidiary of the Company (a “PEO”) for the benefit of any employee, current or former employee, director officer, director, consultant, independent contractor or former director agent of any the Company or any Subsidiary of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributethe Company, or with respect to which any the Company or any Subsidiary of its Subsidiaries the Company has any liabilityobligation or liability in the aggregate of at least $50,000, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementii) or otherwise providing benefits to any current, former or future employee, officer or director of any each employee benefit plan for which the Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 Subsidiary of the Company Disclosure Schedule identifies each could incur liability under Section 4069 of ERISA in the event such plan has been or were to be terminated, and (iii) any plan in respect of which the Company Benefit Plan that Buyers shall assume pursuant to or any Subsidiary of the Company could incur liability under Section 5.8(f4212(c) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor ERISA (collectively, the “Assumed Plans”). Each Plan is in writing and the Company has furnished or otherwise made available to Parent or Parent’s legal counsel a true and complete copy of each Plan and has delivered or made available to Parent or Parent’s legal counsel a true and complete copy of each material document, if any, prepared in connection with each such Plan, including, (A) each trust or other funding arrangement, (B) each summary plan description and summary of material modifications thereto, (C) the most recently filed Internal Revenue Service (“IRS”) Form 5500, (D) the most recently received IRS determination letter or opinion letter for each such Plan, (E) the most recently prepared actuarial report and financial statement in connection with each such Plan, (F) each administrative services agreement and PEO agreement, and (G) any material notices, letters or other correspondence from the IRS or Department of Labor relating to any Plan, whether received by the Company or a PEO. Neither the Company nor any Subsidiary of the Company has any express or implied commitment (1) to create, incur liability with respect to or cause to exist any new or additional employee benefit plan, program or arrangement, (2) to enter into any material contract or agreement to provide compensation or benefits to any individual, or (3) to modify, change or terminate any Plan, other than with respect to a modification, change or termination required by ERISA or the Internal Revenue Code of 1986, as amended (the “Code”).
(b) Neither the Company nor any ERISA Affiliate has ever maintained or been required to contribute to any Plan subject to Title IV of ERISA, including any multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a “Multi-employer Plan”). None of the Plans is a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any Subsidiary of the Company could incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). Except as set forth in Section 4.10(b) of the Disclosure Schedule, none of the Plans (i) provides for the payment of separation, severance, termination or similar-type benefits to any person (other than as required by applicable Law upon termination or retirement), (ii) obligates the Company or any Subsidiary of the Company to pay separation, severance, termination or similar-type benefits solely or partially as a result of any of the Transactions, or (iii) obligates the Company or any Subsidiary of the Company to make any payment or provide any benefit as a result of a “change in control”, within the meaning of such term under Section 280G of the Code. Each of the Company Benefit Plans is subject only to the Laws of the United States or a political subdivision thereof.
(c) Except as required under Section 601 et seq. of ERISA or similar state or local laws, no Plan provides access to medical, life or disability insurance following termination of employment.
(d) To the Company’s knowledge, each Plan is now and always has been operated and administered in all material respects in accordance with its terms and the requirements of all applicable lawLaws including, ERISA and the Code. To the Company’s knowledge, the Company and the Subsidiaries of the Company have performed all material obligations required to be performed by them under, are not in any respect in default under or in violation of, and have no knowledge of any default or violation by any party to, any material terms of any Plan. No Action is pending or, to the knowledge of the Company, threatened with respect to any Plan (other than claims for benefits in the ordinary course) and, to the knowledge of the Company, no fact or event exists that would reasonably be expected to give rise to any such Action. No Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or is the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, or similar program sponsored by any Governmental Authority.
(e) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has timely received a favorable determination or opinion letter from the IRS covering all of the provisions applicable to the Plan for which determination or opinion letters are currently available that the Plan is so qualified and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS that it is so exempt, and, no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS to adversely affect the qualified status of any such Plan or the exempt status of any such trust.
(f) To the Company’s knowledge, there has not been any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan, and no breaches of fiduciary duty under any Plan have occurred that would reasonably be expected to give rise to material liability on the part of the Company or any Subsidiary of the Company. Neither the Company nor any Subsidiary of the Company has incurred any liability under, arising out of or by operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course), including, but not limited to, any liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA, the Code and in each case the regulations thereunder; or (ii) each the withdrawal from any Multi-employer Plan or Multiple Employer Plan, and, no fact or event exists which would reasonably be expected to give rise to any such liability.
(g) All contributions, premiums or payments required to be made by the Company Benefit or any Subsidiary of the Company with respect to any Plan have been made on or before their due dates. All such contributions have been fully deducted for income Tax purposes and no such deduction has been challenged or disallowed by any Governmental Authority and, to the Company’s knowledge, no material fact or event exists which would reasonably be expected to give rise to any such material challenge or disallowance.
(h) Neither the Company nor any Subsidiary of the Company has ever made or caused to be made any profit-sharing, matching or other employer contributions (other than the transmission of employees’ elective salary deferral contributions) to any Plan that is intended to be qualified under Section 401(a) of the Code.
(i) (i) No Plan is a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA, and (ii) no Plan or portion of a Plan that is a welfare benefit plan within the meaning of Section 3(1) of ERISA is self-insured.
(j) All current directors, officers, management employees, consultants, independent contractors and technical and professional employees, and all former employees, consultants and independent contractors who have had a material role in the development of Company Owned Intellectual Property, Company Systems, Company Products or other confidential or proprietary information of the Company and the Subsidiaries of the Company are under written obligation to the Company and the Subsidiaries of the Company to maintain in confidence all confidential or proprietary information acquired by them and relating to the Company Owned Intellectual Property, in the course of their employment and to assign to the Company and the Subsidiaries of the Company all inventions made by them within the scope of their employment during such employment.
(k) Section 4.10(k) of the Disclosure Schedule lists the name, the place of employment, the current annual salary rates (including descriptions of any raises in the preceding three months), bonuses, deferred or contingent compensation, pension, “qualifiedgolden parachute” and other like benefits paid or payable (in cash or otherwise) in the prior fiscal year and the current fiscal year, the date of employment and job title of each current salaried employee, officer, director or consultant of the Company and its Subsidiaries (other than the date of employment of consultants whose services to the Company are immaterial). Except as set forth in Section 4.10(k) of the Disclosure Schedule, there are no arrangements in place pursuant to which any employee, officer, director, consultant or agent of the Company or any of its Subsidiaries may receive or become entitled to receive any change of control, bonus or similar payment as a result of or in connection with the Transactions and, except as set forth in such section of the Disclosure Schedule, the Company has no such obligations.
(l) Except as set forth in Section 4.10(l) of the Disclosure Schedule, the execution, delivery of and performance by the Company of its obligations under this Agreement will not (either alone or upon occurrence of any additional or subsequent events) result in (i) the triggering or imposition of any restrictions or limitations on the right of the Company or any of its subsidiaries to amend or terminate any Plan, or (ii) “excess parachute payments” within the meaning of Section 401(a280G(b)(1) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b.
(m) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is plan subject to Section 409A of the Code, Code has been operated and administered in good faith compliance in all material respects with Code Section 409A of from the Code since period beginning January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A 2005 through the date hereof. No outstanding Company Stock Option has an exercise price lower than the fair market value of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation common stock on the right date of the Companies or any grant of their Subsidiaries to amend, merge or terminate any such Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthStock Option.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Cryocor Inc), Merger Agreement (Cryocor Inc)
Employee Matters. (a) Section 3.11 Schedule 3.11(a) of the Company Disclosure Schedule Letter sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Company Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISAPlan, and each material employmenttrue and complete copies of all such Company Employee Plans, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of including any employee, former employee, director or former director trust instruments and insurance contracts forming a part of any Company Employee Plan, and all amendments thereto, the most recent IRS determination letter, if applicable, and any summary plan descriptions of the Company Employee Plans have been made available to the Purchaser. None of the Company Employee Plans promises or any of its Subsidiaries entered into, maintained provides retiree medical or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing other retiree welfare benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyPerson other than coverage mandated by Applicable Law, the “Assumed Plans”)full cost of which is borne by the retiree.
(b) (i) Each of the Company Benefit Plans Employee Plan has been operated established and administered in all material respects in accordance with its terms and in compliance with the applicable law, including, but not limited to, provisions of ERISA, the Code and other Applicable Laws in each case the regulations thereunder; (ii) each all material respects. Each Company Benefit Employee Plan which is intended to be “qualified” qualified within the meaning of Section 401(a) of the CodeCode is so qualified and to the knowledge of the Company, no event or circumstance has received occurred that could reasonably be expected to cause the loss of such qualification. To the knowledge of the Company and WFS, no event has occurred and no condition exists that would subject the Company or any other entities within common control (each, a favorable determination letter from the Internal Revenue Service“Controlled Group Member”) (as defined by Sections 414(b), (c), (m) or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b(o) of the Code has not expiredor Section 4001 of ERISA) to any penalty, andfine or lien imposed by ERISA, the Code or other Applicable Laws.
(c) With respect to each Company Employee Plan: (i) no litigation (other than routine claims for benefits in the ordinary course of business) is pending, or to the knowledge of the Company, threatened, (ii) to the knowledge of the Company, no facts or circumstances exist that could give rise to any litigation and (iii) no administrative investigation, audit, or other administrative proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or other governmental agencies is pending, in progress or, to the knowledge of Sellerthe Company, there threatened.
(d) Neither the Company nor any of its Controlled Group Members, sponsors, maintains, administers, contributes to (or is not required to sponsor, maintain, administer or contribute to) any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is plan subject to Title IV or Section 302 of ERISA or ERISA, Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (plan as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within and neither the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or Company nor any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; its Controlled Group Members (viii) neither the Companies nor any of their Subsidiaries predecessors) has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1past six (6) of the Code and years sponsored, maintained, contributed to (or been required to sponsor, maintain, administer or contribute to) any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codesuch plan.
(ce) Neither The Company has made or will accrue prior to the Companies nor any Closing Date all payments and contributions (including insurance premiums) due and payable as of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Closing Date to each Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Employee Plan.
(df) Neither the Company nor any of its Subsidiaries has any obligations under any Company Employee Plan to provide post-retirement medical benefits to any employee or any former employee of the Company or any of its Subsidiaries, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or applicable state law.
(g) Except as provided on Schedule 3.11(g) of the Company Disclosure Letter, neither the execution or and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, hereby will (i) result in entitle any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor former employee of the Companies Company or any of their its Subsidiaries or to such individuals in the aggregateseverance pay, (ii) materially accelerate the time of payment or vesting of, or increase the amount of, compensation or value of any benefit or compensation otherwise payable or required to be provided benefits due to any such directoremployee of the Company or its Subsidiaries, employee or independent contractor, (iii) result in the acceleration payment to any employee of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies Company or any of their its Subsidiaries of an amount that will be an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code) except as may be required by Applicable Law.
(h) To the knowledge of the Company, no oral or written representation or communication with respect to amend, merge any aspect of the Company Employee Plans has been made to employees of the Company or terminate any of its Subsidiaries prior to the date hereof which is not in accordance with the written or otherwise pre-existing terms and provisions of such Company Benefit Plan or related trust, or Employee Plans.
(vi) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes additional Tax under Section 4999 409A(a)(1)(B) of the Code has been or any income Taxes under is reasonably expected to be incurred by a participant in a nonqualified deferred compensation plan (within the Code or (Bmeaning of Section 409(A)(d)(1) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies Code) of the Company or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their its Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Wachovia Corp New), Merger Agreement (Westcorp /Ca/)
Employee Matters. (a) Section 3.11 of the The Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISAshall not, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or shall not permit any of its Subsidiaries entered intoto, maintained (i) grant any increases in the compensation (including bonuses) or contributed benefits payable or to by any Company or become payable to any of its Subsidiaries directors, officers or key employees (which for purposes of this Section 4.1(j), “key employee” shall mean any employee whose annual base salary is equal to which or greater than $100,000), except for increases in the compensation or benefits of such directors, officers or key employees required by any existing director compensation plan, Employee Benefit Plan, Company Stock Plan or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 employment agreement of the Company Disclosure Schedule identifies Company, in each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) case, as such terms, plans or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each agreements are in effect as of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunderdate hereof; (ii) each Company Benefit Plan intended grant any increases in the compensation (including bonuses) or benefits payable or to be “qualified” within become payable to any of its employees who are not key employees, except for increases in the meaning compensation or benefits of Section 401(a) such employees made in the ordinary course of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service business consistent with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revokedpast practice; (iii) with respect pay or agree to each Company pay to any director, officer or key employee, whether past or present, any material pension, retirement allowance or other employee benefit not required by any Employee Benefit Plan existing on the date of this Agreement; (iv) enter into any new, or amend any existing Employee Benefit Plan; (v) establish or become obligated under any collective bargaining agreement or Employee Benefit Plan that is subject to Title IV was not in existence or Section 302 of ERISA or Section 412 or 4971 of approved by the Code, (A) as of the last day of the most recent plan year ended Company Board prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liabilitythis Agreement; (vi) neither the Companies nor fund (or agree to fund) any of their Subsidiaries contributes on behalf of employees of the Companies compensation or benefits under any of their Subsidiaries to Employee Benefit Plan, including through a “multiemployer pension planrabbi” (as such term is defined in Section 3(37) or similar trust, not required by any Employee Benefit Plan existing on the date of ERISA) this Agreement; or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or hire any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, new employee or independent contractor of or terminate the Companies employment or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value service relationship of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result other than where such hiring or termination is in the acceleration ordinary course of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, business consistent with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthpast practice.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Energy Xxi (Bermuda) LTD), Merger Agreement (Epl Oil & Gas, Inc.)
Employee Matters. (a) Section 3.11 of With respect to each material Company Benefit Plan, the Company Disclosure Schedule sets forth a has made available to Parent true, complete and correct list copies of the following (as applicable): (i) the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof; and (ii) any related trust agreements, insurance contracts or documents of any other funding arrangements. For purposes of this Agreement, “Company Benefit Plans” means each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any the Company or any of its Subsidiaries entered into, maintained or contributed to by any the Company or any of its Subsidiaries or to which any the Company or any of its Subsidiaries is obligated to contribute, or with respect to which any the Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) ), or otherwise providing benefits to any current, former or future employee, officer or director of any the Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)dependant thereof.
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (M&t Bank Corp), Merger Agreement (Wilmington Trust Corp)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth 3.9(a)(i) contains a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) all employees of the Employee Retirement Income Security Act Company and each of 1974its Subsidiaries, their respective titles as amended of the date hereof (the “ERISACompany Employees”), whether the calendar year 2012 and 2013 compensation paid or not subject payable to ERISAeach such employee, the date of employment of each such employee and the accrued vacation time and sick leave or other paid time off of each such employee. Except as set forth on Schedule 3.9(a)(ii), (i) the terms of employment or engagement of all directors, officers, Company Employees, agents, consultants and professional advisers of the Company and each material employmentof its Subsidiaries are such that their employment or engagement may be terminated at will with notice given at any time and without Liability for payment of compensation or damages (other than individuals working outside of the United States, consultingwhere “at will” employment is not recognized), bonus, incentive (ii) there are no severance payments which are or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for could become payable by the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoto any such person under the terms of any oral or written agreement or commitment, maintained (iii) there are no other agreements, contracts or contributed commitments, oral or written, including with respect to by any hiring bonuses, relocation payments, immigration assistance, retention arrangements or commitments, or transaction bonus or incentive agreements, between the Company or any of its Subsidiaries and any such person, (iv) except as set forth on Schedule 3.9(a)(iii) and except for employees Parent has notified the Company that it does not intend to retain, no executive officer or material number of management level or senior technical employees of the Company or any of its Subsidiaries has notified the Company or any of its Subsidiaries has notified the Company of any plans to terminate his, her or their employment or relationship with the Company and (v) there are no agreements between any Company Employee and any other Person which would restrict, in any manner, such Person’s ability to perform services for the Company, any of its Subsidiaries or Parent or the right of any of them to compete with any Person or the right of any of them to sell to or purchase from any other Person. Schedule 3.9(a)(iv) contains a complete and correct list of (A) any employees who were hired with the assistance of an agency, search or recruiting firm for which any fee is owed, (B) the agencies who have made placements of employees with the Company since January 1, 2012, and (C) any agencies that may currently be working on behalf of the Company. Copies of any agreements with agencies relating to placements of employees with the Company made since January 1, 2012 and current employee searches have been made available to Parent.
(b) Neither the Company nor any of its Subsidiaries is, or has ever been, bound by or subject to (and none of its assets or properties are bound by or subject to) any arrangement with any labor union or other collective bargaining representative. To the Knowledge of the Company, no employee of the Company or any of its Subsidiaries is obligated to contribute, or with respect to which has ever been represented by any Company labor union or covered by any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of collective bargaining agreement while employed by the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Sellerthe Company, there no campaign to establish such representation is not any reason why any such determination letter should be revoked; (iii) with in progress. With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing conditionpending or threatened (i) strike, situation slowdown, picketing, work stoppage or set employee grievance process, (ii) material charge, grievance proceeding or other claim against or affecting the Company relating to the alleged violation of circumstances which could reasonably be expected any law pertaining to result in such labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission or any comparable Government Authority, (iii) union organizational activity or other labor or employment dispute against or affecting the Company, or (iv) application for certification of a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codecollective bargaining agent.
(c) Neither the Companies nor any of their Subsidiaries willExcept as set forth on Schedule 3.9(c)(i), on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation each of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is and has been in compliance in all material respects with all applicable laws and collective bargaining agreements Laws respecting employment and employment practices, terms and conditions of employment, and wages and hours hours, including, without limitation, any such laws regarding employment documentation, equal employment opportunities, fair employment practices, plant closings and mass layoffs, sexual harassment, retaliation, discrimination based on sex, race, disability, health status, pregnancy, religion, national origin, age, genetic information, family medical history, whistleblowing or other tortious conduct, workers’ compensation, family and medical leave, the Immigration Reform and Control Act, and occupational safety and healthhealth requirements, and neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice. Neither the Company nor any of its Subsidiaries is, or has ever been, liable for the payment of any compensation, damages, Taxes, fines, penalties or other amounts, however designated, for failure to comply with any of the foregoing. All Persons classified by the Company or any of its Subsidiaries as independent contractors or consultants do satisfy and have satisfied the requirements of Law to be so classified. Schedule 3.9(c)(ii) sets forth a list of all contractors and consultants and opposite their names lists the time periods each contractor or consultant has been providing services. No individual who has performed services for or on behalf of the Company or any of its Subsidiaries and who has been treated by the Company or any of its Subsidiaries as an independent contractor, is classifiable as a “leased employee” within the meaning of Section 414(n)(2) of the Code with respect to the Company or such of its Subsidiaries.
(fd) The Companies and their No third party has asserted a claim against the Company, or, to the knowledge of the Company, has reason to claim that any person employed by the Company or any of its Subsidiaries do not maintain any material Company Benefit Plans has (i) outside violated any of the U.S. terms or conditions of his employment, non-competition, non-solicitation or non-disclosure agreement with such third party, (ii) for disclosed or utilized any trade secret or proprietary information or documentation of such third party, or (iii) interfered in the benefit employment relationship between such third party and any of its present or former employees. No person employed by the Company or any of its Subsidiaries, to the knowledge of the Company, has disclosed or used or has proposed to disclose or use any trade secret or any information or documentation proprietary to any former employer or violated any confidential relationship which such person may have had with any third party, in connection with the development, manufacture or sale of any individual whose principal place Product or proposed Product or the development or sale of employment is outside any service or proposed service of the U.S.Company or any of its Subsidiaries.
(e) Schedule 3.9(e) lists all the Company Employees who are currently on leave relating to work-related injuries and/or receiving disability benefits under any Company Plan.
Appears in 2 contracts
Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Employee Matters. (a) Section 3.11 3.13(a)(i) of the Company Seller Disclosure Schedule contains a complete and accurate list of the employees of Seller employed primarily in the Business (the "Employees") as of the date specified on such list, showing for each Employee the position held, department and work location. None of the Employees is covered by any union, collective bargaining agreement or other similar labor agreement.
(b) Section 3.13(b) of the Seller Disclosure Schedule sets forth a true, true and complete and correct list of each “"employee benefit plan” " as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA and any other plan, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar planpolicy, program, agreement practice, agreement, understanding or commitmentarrangement, whether written in each case, providing compensation or unwrittenother benefits to any Employee, for the benefit of any employeemaintained, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained sponsored or contributed to by any Company Seller or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or ERISA Affiliate with respect to which any Company current or any of its Subsidiaries has any liabilityformer Employee (each, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company a "Seller Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”Plan").
(bc) The Seller has supplied to the Purchaser a true and correct copy of: (i1) Each each Seller Benefit Plan (or if no written plan document exists, a written description of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawnature of the Plan, including, but not limited tothe provisions relating to participation, ERISAeligibility, the Code benefits, funding arrangements including cost to Employee, if any, and in each case the regulations thereunderassets); (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B2) the amount summary plan description and any material employee communication which describes the terms or operation of such liabilities as each Seller Benefit Plan.
(d) Neither Seller nor any of the last day of the most recent plan year ended prior its ERISA Affiliates sponsors, maintains or contributes to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “"employee pension benefit plan” " (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Companythat is subject to Title IV of ERISA or Section 412 of the Code, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “"multiemployer pension plan” (" as such term is defined in Section 3(37) of ERISA.
(e) To Seller's knowledge, no event has occurred, or a plan that has two or more contributing sponsors at least two of whom are not under common controlcondition exists, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or which could subject any of their Subsidiaries the Conveyed Assets or Purchaser to any future liability, obligation or lien with respect to each Company any Employee Benefit Plan in respect of current currently or prior plan years have been paid previously, sponsored, maintained or accrued in accordance with generally accepted accounting principles; (viii) neither contributed to by the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies Seller or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to ERISA Affiliate.
(f) Except as required by Law or as set forth on Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(13.13(b) of the Code and Seller Disclosure Schedule, no Seller Benefit Plan provides any award thereundermedical, in each case that is subject disability or life insurance benefits to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeany Employees or their beneficiaries.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dg) Neither the execution or and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, hereby will give rise to any director, employee or independent contractor of the Companies or any of their Subsidiaries or obligation to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of notify employees of the Companies Business (or any of their Subsidiaries has made a pending demand for recognition or certificationsimilar obligation) pursuant to the Worker Adjustment and Retraining Notification Act, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances29 U.S.C. Section 2101 et seq., or other material labor disputes pending or threatened against or involving under any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit similar provision of any individual whose principal place of employment is outside of the U.S.federal or state Law, rule, or regulation.
Appears in 2 contracts
Samples: Asset Purchase Agreement (RCN Corp /De/), Asset Purchase Agreement (Susquehanna Media Co)
Employee Matters. (a) Section 3.11 of The Company has disclosed in the Company Disclosure Schedule sets forth a true, complete and correct list of each SEC Reports any “employee benefit plan” as defined in Section 3(3) of subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company that it or any of its Subsidiaries entered into, maintained or contributed Subsidiary maintains for employees (without giving effect to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”Merger closing).
(b) (i) Each No director or officer or other employee of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawor any Subsidiary will become entitled to any retirement, includingseverance, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning change of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Servicecontrol, or has pending an application for such determination from the Internal Revenue Service similar benefit or enhanced or accelerated benefit (including any acceleration of vesting) or lapse of repurchase rights or obligations with respect to those provisions for which the remedial amendment period any employee benefit plan subject to ERISA or other benefit under Section 401(b) any compensation plan or arrangement of the Code has not expiredCompany (each, an “Employee Benefit Plan”) as a result of the transactions contemplated in this Agreement (and without giving effect to the Merger closing).
(c) No executive officer, to the Knowledge of the Company and each Subsidiary, is, or is now reasonably expected to be, in violation of any term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant with the Company or any Subsidiary, and, to the knowledge of Sellerthe Company and each Subsidiary, the continued employment of each such executive officer does not subject the Company or any Subsidiary to any material liability with respect to any of the foregoing matters.
(d) The Company and each Subsidiary is, and for the last three (3) years has been in compliance in all material respects with, all applicable Laws respecting labor and employment. Except as set forth in Section 4.17 of the Disclosure Schedule, there is not are no pending or the Company’s Knowledge, threatened, claims against any reason why the Company or any such determination letter should be revokedSubsidiary on account of any labor or employment matter or action. Except as set forth in Section 4.17 of the Disclosure Schedule, neither the Company nor any Subsidiary is: (i) a party to or otherwise bound by any collective bargaining; (ii) a party to, or the Company’s Knowledge, threatened by, any unfair labor practice charge or complaint, grievance or labor arbitration; or (iii) currently negotiating any collective bargaining agreement to which the Company or any Subsidiary is or would be a party. In the last year, neither the Company or any Subsidiary has experienced any strike, lockout, slowdown or work stoppage, nor, to the Company’s Knowledge, is any such action threatened. There is not pending, nor has there ever been, any union election petition filed with respect the National Labor Relations Board, or, to each Company Benefit Plan that is subject to Title IV the Company’s Knowledge, union organizing activity by or Section 302 of ERISA or Section 412 or 4971 for the benefit of the Code, (A) as employees of the last day of Company or any Subsidiary or otherwise affecting the most recent plan year ended prior to Company or any Subsidiary. To the date hereofCompany’s Knowledge, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company there are no pending audits or investigations by any Governmental Entity involving any Employee Benefit Plan and no threatened or pending material claims (B) except for individual claims for benefits payable in the amount of such liabilities as normal operation of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller Employee Benefit Plans), suits or its applicable Subsidiary previously filed with the SEC; (iv) no Company proceedings involving any Employee Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether asserting any rights or not insured), with respect claims to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any CompanyEmployee Benefit Plan, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in fullnor, and no condition exists that presents a risk to the CompaniesCompany’s Knowledge, their Subsidiaries or are there any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto facts which could reasonably be expected to result in give rise to any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding event of any such benefit audit, investigation, claim, suit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthproceeding.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Securities Purchase Agreement (FinTech Acquisition Corp), Securities Purchase Agreement (FinTech Acquisition Corp)
Employee Matters. (a) Section 3.11 3.12(a) to the Company Disclosure Schedule lists all employment contracts and all other material contracts to which the Company is a party with dependent and independent contractors. Section 3.12(a) of the Company Disclosure Schedule sets forth the position held by each employee with the Company, and the annual salary and the length of employment of each employee.
(b) Except as disclosed on Section 3.12(b) to the Company Disclosure Schedule,
(i) no trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent holds bargaining rights with respect to any of the Company's employees by way of certification, interim certification, voluntary recognition, designation or successor rights,
(ii) the Company has not received notice that any trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent has applied to be certified as the bargaining agent of any of the Company's employees, and
(iii) the Company has not received notice that any trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent has applied to have the Company declared a truerelated employer or successor employer pursuant to applicable labor legislation.
(c) Except (i) as disclosed in Section 3.12(c) to the Company Disclosure Schedule and (ii) for remuneration paid to employees and independent contractors in the usual and ordinary course of business, no material payments have been made or authorized since the Company Balance Sheet Date by the Company to officers, directors, employees, or independent contractors of the Company.
(d) Section 3.12(d) to the Company Disclosure Schedule contains a correct and complete and correct in all material respects list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, all bonus, incentive or deferred compensation, vacationincentive compensation, share or stock option bonus, share or stock purchase, share or stock appreciation right, share or stock option, severance pay or termination pay, health or other equity-basedmedical, severancelife or other insurance, terminationdeath benefit, retentiondisability, change of controlmedical reimbursement, profit-supplementary unemployment benefit, profit sharing, fringe pension, retirement and every other benefit or other similar plan, program, agreement or commitment, whether written arrangement ("Benefit Plans") maintained or unwritten, contributed to or required to be contributed to by the Company thereof for the benefit of any employee, former employee, director current or former director directors, officers, employees or independent contractors of any the Company or their respective dependents or beneficiaries.
(e) The Company shall provide, within 15 days of request, to Purchaser copies of the Company's Benefit Plans and all amendments thereto and make available to Purchaser all documents in the Company's possession pertaining to compensation practices, benefits and other terms and conditions of employment of all directors, officers or employees of the Company.
(f) Each "employee pension benefit plan" as defined in Section 3(2) of ERISA that is subject to ERISA (a "Pension Plan") and that has been maintained or contributed to within the last three years by the Company or any trade or business (whether or not incorporated) that is under common control with the Company (as determined in accordance with Section 4001 of its Subsidiaries entered into, ERISA) or is a member of a "controlled group" with the Company (as defined in Section 4971(e)(2)(B) of the Code) (the "Controlled Group") is identified as such on Section 3.12(f) to the Company Disclosure Schedule. Each "employee welfare benefit plan" as defined in Section 3(1) of ERISA and that is subject to ERISA and that has been maintained or contributed to by any Company or any member of its Subsidiaries or the Controlled Group is identified as such on Section 3.12(f) to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers Schedule. The Pension Plans and the employee welfare benefit plans shall assume pursuant be referred to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation collectively as "Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).. "
(bg) (i) Each None of the Company Benefit Company's Pension Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 to the minimum funding standards of Code section 412. None of the Code, (A) Company's Pension Plans is a "multi-employer plan" as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of defined in Section 4001(a)(164001(a)(3) of ERISA did and does not exceed neither the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as nor any member of the last day of the most recent plan year ended prior Controlled Group has incurred or is expected to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), incur any withdrawal liability under ERISA with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension "multi-employer plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries " or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk single employer plan subject to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; .
(viih) all material contributions or other material amounts payable by Neither the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any member of their Subsidiaries has engaged in a transaction in connection with which the Companies or Company's Controlled Group is aware of any facts that would adversely affect the qualified status of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to any Pension Plan under Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 401 of the Code; and .
(ixi) To the knowledge of the Company, there is are no pendingoutstanding or pending Actions, threatened or anticipated claim claims (other than routine claims for benefits) by, on behalf of or Investigations asserted or instituted against any of the Company Benefit Company's Plans or against the Company or any trusts related thereto which could reasonably be expected to result in any material liability member of the Companies Controlled Group or any fiduciary of their Subsidiaries and, the Plans with respect to the operation of the Company's Plans.
(j) To the knowledge of Sellerthe Company: (x) the Company's Plans have, there is no existing conditionin all material respects, situation been maintained, administered and operated in accordance with their terms and with all provisions of ERISA, the Code, and any other statute (including rules and regulations under ERISA, the Code and any other applicable statute) applicable thereto; and (y) neither the Company nor any member of the Controlled Group nor any "party in interest" or set "disqualified person" within the control of circumstances which could reasonably be expected the Company or any member of the Controlled Group with respect to result the Company's Plans has engaged in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” "prohibited transaction" within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 4975 of the Code or Title I, Part 4 of ERISA.
(k) The Company shall furnish to Purchaser, within 15 days of request, copies of the latest summary plan description for each Plan of the Company. The Company shall furnish, within 15 days of request, to Purchaser copies, including all schedules and attachments, of each Form 5500 for each Plan of the Company for the last two years.
(l) The Company has no knowledge of any income Taxes under fact, condition, or circumstance since the Code or (Bdate of the documents provided pursuant to Section 3.12(e) payments above that would materially affect the information contained therein and no promises have been made by the Company to amend any Plan of the Company or to provide increased benefits thereunder, except as required by applicable law. (m) Except as disclosed in Section 3.12(m) to the Company Disclosure Schedule and except as would not reasonably be non-deductible under Code Sections 162(mexpected to have a Material Adverse Effect, the Company does not have any liability arising out of claims made or suits brought (including workers compensation, occupational health and safety, environmental, equal employment or nondiscrimination) for injury, sickness, disease, death or 280G.
(e) No labor organization termination of employment of any employees or group of former employees of the Companies Company to the extent attributable to an event occurring or any of their Subsidiaries has made a pending demand for recognition facts and circumstances existing at or certificationprior to Closing. (n) To the Stockholders' and the Company's knowledge, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any Plan of the Companies Company contains any term or any of their Subsidiaries. Each of the Companies and provision that precludes or otherwise prohibits its Subsidiaries is in compliance in all material respects 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 healthtermination.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Communications Systems International Inc), Stock Purchase Agreement (Communications Systems International Inc)
Employee Matters. (a) Section 3.11 of the The Company Disclosure Schedule sets forth has Previously Disclosed a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit benefit, health, medical or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries unwritten entered into, maintained or contributed to by any the Company or any of its Consolidated Subsidiaries or to which any the Company or any of its Consolidated Subsidiaries is obligated to contribute, contribute or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing provides benefits to any current, former or future employee, officer or director of any the Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each With respect to each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISAmaintained by the Company or any of its Consolidated Subsidiaries, the Code Company has provided to Parent or has previously publicly filed, true, complete and in each case correct copies of the regulations thereunderfollowing (as applicable): (i) the written document evidencing such Company Benefit Plan; (ii) the summary plan description; (iii) the three most recent annual reports, financial statements and/or actuarial reports; (iv) the most recent determination letter from the IRS; (v) the three most recent Form 5500s that have been filed with the IRS, including all schedules thereto; (vi) any related trust agreements, insurance contracts or documents of any other funding arrangements; (vii) any notices to or from the IRS or any office or representative of the Department of Labor relating to any pending compliance issues in respect of any such Company Benefit Plan; and (viii) all material amendments, material modifications or material supplements to any such Company Benefit Plan.
(c) With respect to each of the Company Benefit Plans, (i) all contributions, premiums and other payments required to be made with respect to any Company Benefit Plan have been made on or before their due dates under applicable Law and the terms of such Company Benefit Plan, (ii) the Company and each of its Consolidated Subsidiaries have operated and administered each such Company Benefit Plan in material compliance with all applicable Laws and the terms of each such plan, and (iii) the terms of each such Company Benefit Plan maintained by the Company or its Consolidated Subsidiaries are in material compliance with all applicable Laws. Each Company Benefit Plan maintained by the Company or its Consolidated Subsidiaries that is intended to be “qualified” within the meaning of under Section 401(a) of the Code, 401 has received a favorable determination or opinion letter from the Internal Revenue Service, or has pending an application for IRS to such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, effect and, to the knowledge of Sellerthe Company, there is not any reason why any no fact, circumstance or event has occurred or exists since the date of such determination letter should that would reasonably be revoked; (iii) with respect expected to each Company Benefit Plan that is subject to Title IV or Section 302 adversely affect the qualified status of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of any such Company Benefit Plan and (B) Plan. There are no pending or, to the amount of such liabilities as knowledge of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) material Proceedings by, on behalf of or against any of the Company Benefit Plans, any fiduciaries of such Company Benefit Plans (with respect to whom the Company has an indemnification obligation with respect to their duties to any such Company Benefit Plans), or against the assets of such Company Benefit Plans or any trusts related thereto which could reasonably be expected to result trust maintained in any material liability of connection with such Company Benefit Plans (other than routine claims for benefits).
(d) Each trade or business, whether or not incorporated, that together with the Companies Company or any of their its Consolidated Subsidiaries and, would be deemed to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plansingle employer” within the meaning of Section 409A(d)(14001(b) of ERISA (an “ERISA Affiliate”), has, to the Code and any award thereunder, in each case that is subject to Section 409A knowledge of the CodeCompany, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 20052008, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or fulfilled its obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.the
Appears in 2 contracts
Samples: Merger Agreement (Ares Capital Corp), Merger Agreement (Allied Capital Corp)
Employee Matters. (a) Section 3.11 All benefit and compensation plans, contracts, policies, programs or arrangements covering current or former employees, Directors and consultants of the Company Disclosure Schedule sets forth a trueand its Subsidiaries (the “Employees”), complete and correct list of each including, but not limited to, “employee benefit planplans” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonusretirement, incentive or deferred compensation, vacation, stock option or other equity-basedpension, severance, termination, retention, change of in control, profit-vacation, deferred compensation, stock option, stock purchase, stock appreciation rights, equity based, incentive, bonus, profit sharing, insurance, medical, welfare, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programscontracts, agreements and commitmentspolicies, herein referred to as programs or arrangements (the “Company Benefit Plans”). Section 3.11 of the Company Disclosure ) are listed in this Schedule identifies 5.18 attached hereto, and each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (which has received a favorable opinion letter from the Internal Revenue Service National Office, including the LFG Deferred Compensation Plans) any master or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyprototype plan, the “Assumed Plans”).
(b) (i) Each of the Company has been separately identified. All Benefit Plans has been operated and administered are in all material respects in accordance substantial compliance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company other applicable laws. Each Benefit Plan intended which is subject to be ERISA (the “qualifiedERISA Plans”) that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (“Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge Knowledge of Sellerthe Company, there is not any reason why are no circumstances likely to result in revocation of any such favorable determination letter should be revoked; (iiior the loss of the qualification of such Pension Plan under Section 401(a) of the Code. Neither the Company nor any Subsidiary has engaged in a transaction with respect to each any ERISA Plan that, assuming the taxable period of such transaction expired as of the Effective Date, could subject the Company Benefit or any Subsidiary to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which would be material. Neither the Company nor any of the Subsidiaries has incurred or reasonably expects to incur a material tax or penalty imposed by Section 4980F of the Code or Section 502 of ERISA. Neither the Company, any Subsidiary nor any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (x) maintains or contributes to or has within the past six years maintained or contributed to a Pension Plan that is subject to Subtitles C or D of Title IV or Section 302 of ERISA or Section 412 (y) maintains or 4971 of has an obligation to contribute to or has within the Code, (A) as of the last day of the most recent plan year ended prior past six years maintained or had an obligation to the date hereofcontribute to a multiemployer plan, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two . All contributions required to be made under each Benefit Plan, as of whom are not under common controlthe Effective Date, within the meaning of Section 4063 of ERISA; (vii) have been timely made and all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan obligations in respect of current or prior plan years each Benefit Plan have been paid or properly accrued and reflected in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 Financial Statements. As of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of SellerEffective Date, there is no existing conditionmaterial pending or, situation or set to the Knowledge of circumstances which could reasonably be expected the Company threatened, litigation relating to result in such a claimthe Benefit Plans. Each Neither the Company nor any Subsidiary has any obligations for retiree health and life benefits under any Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning or collective bargaining agreement. The Company or its Subsidiaries may amend or terminate any such retiree health and life plan at any time without incurring any liability thereunder other than in respect of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject claims incurred prior to Section 409A of the Code, such amendment or termination. There has been operated no amendment to, announcement by the Company or any Subsidiary relating to, or change in compliance in all material respects with Section 409A of the Code since January 1participation or coverage under, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Planwould increase materially the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation None of the transactions contemplated by this Agreement willor the other Transaction Documents, either alone individually or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (i) constitute a “change in control” or “change of control” (or phrases of similar import) within the meaning of any Benefit Plan, (ii) materially increase result in any payment or benefit (including severance, unemployment compensation, “excess parachute payment” (within the amount meaning of Section 280G of the Code), forgiveness of indebtedness or value of any benefit or compensation otherwise payable or required to be provided otherwise) becoming due to any such directorEmployee, employee the Directors or independent contractorany consultant of the Company or any Subsidiary under any Benefit Plan, (iii) result in payments under any of the Benefit Plans which would not be deductible under Section 162(m) of the Code, (iv) increase any compensation or benefits otherwise payable under any Benefit Plan, (v) result in any acceleration of the time of paymentpayment or vesting of any such benefits, vesting, exercisability (vi) require the funding or increase in the funding of any such benefit benefits, or compensation, (ivvii) result in any material limitation on the right of the Companies Company or any of their Subsidiaries Subsidiary to amend, merge merge, terminate or terminate receive a reversion of assets from any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Institutional Financial Markets, Inc.), Securities Purchase Agreement (Institutional Financial Markets, Inc.)
Employee Matters. (ai) Section 3.11 of the Company Disclosure Schedule 3.1(r) sets forth a true, complete and correct list of each “"employee benefit plan” ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive all other employee compensation and benefit arrangements or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitspayroll practices, including, without limitation, death all severance pay, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, retirement, deferred compensation, bonus, long-term incentive, stock option, stock purchase, hospitalization, medical benefits insurance, life insurance, and scholarship plans or programs maintained by such Assignor or any trade or business (whether or not insuredincorporated) which is under common control, or which is treated as a single employer, with such Assignor under Section 414(b), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service(c), other than (Am) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2o) of ERISA); the Code (v"ERISA Affiliate") no Controlled Group Liability has been incurred by any Companyor to which such Assignor, any of its Subsidiaries Subsidiaries, or an ERISA Affiliate has contributed or is obligated to contribute (all such plans or arrangements being hereinafter referred to as the "Employee Benefit Plans") on account of any person presently employed by such Assignor (an "Employee") or formerly so employed by such Assignor (a "Former Employee"), or under which any Employee or Former Employee participates or has accrued any rights. The terms Employee and Former Employee will include, where applicable, the beneficiaries and dependents of an Employee or Former Employee. Except as disclosed on Schedule 3.1(r), no such Assignor or any of their respective ERISA Affiliates that Affiliate has not been satisfied in full, and no condition exists that presents a risk ever contributed to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees plan subject to Section 413 of the Companies Code or to any of their Subsidiaries to a “multiemployer pension plan” (multiple employer welfare arrangement, as such term is defined in Section 3(373(40) of ERISA) . Such Assignor has no commitment or a plan that has two obligation to establish or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions adopt any new or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company additional Employee Benefit Plans or to materially increase the benefits under any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Employee Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dii) Neither No Employee or Former Employee of such Assignor will be entitled to any additional benefit or any acceleration of the execution time of payment or delivery vesting of this Agreement nor any benefit under any of the consummation Employee Benefit Plans set forth on Schedule 3.1(r) as a result of the transactions contemplated by this Agreement will, either alone or in conjunction with any the other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthTransaction Documents.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Master Settlement Agreement (Greenbriar Corp), Master Settlement Agreement (Greenbriar Corp)
Employee Matters. (a) Section 3.11 Neither the Company, any of the Company Disclosure Schedule sets forth Company’s Subsidiaries nor any of their respective ERISA Affiliates has ever maintained, participated in or contributed to (or been obligated to contribute to) (i) an Employee Plan which was ever subject to Section 412 of the Code or Title IV of ERISA; (ii) a true, complete and correct list “multiemployer plan” (as defined in Section 4001(a)(3) of each ERISA); (iii) a “employee benefit multiple employer plan” as defined in ERISA or the Code; or (iv) a “funded welfare plan” within the meaning of Section 3(3) 419 of the Code, except, in each case, which would not have a Material Adverse Effect on the Company.
(b) No Employee Retirement Income Security Act Plan provides post-retirement health insurance or life insurance benefits to former employees of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any its ERISA Affiliates, other than pursuant to Section 4980B of its Subsidiaries entered into, maintained or contributed to by any Company the Code or any of its Subsidiaries similar Laws, except as would not be material to the Company.
(c) There is no Contract, agreement, plan or arrangement to which any the Company or any of its Subsidiaries is obligated to contributea party, including the provisions of this Agreement, covering any employee, consultant or with respect to which any director of the Company or any of its Subsidiaries has any liabilitySubsidiaries, direct which, individually or indirectcollectively, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits could give rise to any current, former or future employee, officer or director the payment of any amount that would not be deductible pursuant to Sections 280G of the Code, except as would not have a Material Adverse Effect on the Company.
(d) Except as disclosed in the Company SEC Reports, there is no Contract, agreement, plan, arrangement or other contract by which the Company or any of its Subsidiaries Subsidiaries, is or any successor to the Company or any beneficiary of its Subsidiaries, would be bound to compensate any current or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 former employee or consultant of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume or any of its Affiliates for excise taxes paid pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 4999 of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Ramtron International Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
Employee Matters. (a) Section 3.11 SECTION 4.17(a) of the Company Disclosure Schedule sets forth a true, complete lists each ERISA Plan (as defined below) and correct list each material Plan as of the date hereof. “Plan” shall mean each “employee pension benefit plan,” as that term is defined in Section 3(3section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject ; each “employee welfare benefit plan,” as that term is defined in section 3(1) of ERISA (such plans being hereinafter referred to ERISA, collectively as the “ERISA Plans”); and each material employmentother retirement, consultingpension, bonusprofit-sharing, incentive or money purchase, deferred compensation, vacationexcess benefits, incentive compensation, bonus, stock option or other equity-basedequity related program, severance, termination, retentionseverance pay, change of control, profit-sharingcontrol benefits or payments, fringe benefit benefit, employment or other similar employee benefit plan, policy, program, agreement agreement, or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, arrangement maintained or contributed to by any the Company or any the Company Subsidiaries in the six years preceding the date of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributethis Agreement, or and with respect to which any the Company or any of its the Company Subsidiaries has any have liability, direct or indirectcould have liability due to any applicable statute of limitations not having expired, contingent as of the date hereof, in respect of or otherwise for the benefit of (including i) any liability arising out current employee, consultant or independent contractor of the Company or the Company Subsidiaries who provides substantially all of his or her services to or for the business of the Company or the Company Subsidiaries (any such individual referred to hereinafter as an indemnification, guarantee, hold harmless or similar agreement“Employee”) or otherwise providing benefits director or (ii) any former Employee or director, but excluding any such plan, program, agreement, or arrangement maintained or contributed to any currentsolely in respect of or for the benefit of Employees or former Employees employed or formerly employed outside of the United States, former or future employee, officer or director as of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”)date hereof. Section 3.11 SECTION 4.17(a) of the Company Disclosure Schedule identifies also lists any Foreign Plan (as defined below) that is a defined benefit type retirement Plan and each Company Benefit Plan that Buyers other material Foreign Plan. “Foreign Plan” shall assume pursuant mean each plan, program, policy agreement, or arrangement maintained or contributed to Section 5.8(f) in the six years preceding the date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyAgreement, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) Company or the Company Subsidiaries have liability, or could have liability due to any applicable statute of the Code has limitations not having expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day date hereof, solely in respect of or for the benefit of current or former Employees or directors employed or formerly employed outside of the most recent plan year ended prior to the date hereofUnited States, as of the date hereof (collectively referred to hereinafter as the “Foreign Plans”). With respect to any Foreign Plans, (i) all Foreign Plans have been established, maintained and as administered in material compliance with their terms and all applicable statutes, laws, ordinances, rules, orders, decrees, judgments, writs and regulations of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller any controlling governmental authority or its applicable Subsidiary previously filed with the SECinstrumentality; (ivii) no Company Benefit Plan provides material benefitsall Foreign Plans that are required to be funded are fully funded, including, without limitation, death or medical benefits (whether or not insured), and with respect to current all other Foreign Plans, adequate reserves therefore have been established on the accounting statements of the Company or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than Subsidiary; and (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (viii) no Controlled Group Liability has been incurred by any Company, any material liability or obligation of its Subsidiaries the Company or any of their respective ERISA Affiliates Company Subsidiary exists with respect to such Foreign Plans that has not been satisfied disclosed in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (viSECTION 4.17(a) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with Company Disclosure Schedule. With respect to each Plan and each Foreign Plan listed on SECTION 4.17(a) of the Company Benefit Plan in respect of current Disclosure Schedule, the Company has delivered or prior plan years have been paid made available to Buyer a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and to the extent applicable and available to the Company after reasonable inquiry: (i) any related trust agreement or accrued in accordance with generally accepted accounting principlesother funding instrument; (viiiii) neither the Companies nor most recent determination letter, if applicable; (iii) any summary plan description (to the extent required by applicable law) and summaries of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Codemodifications; and (ixiv) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and two (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for most recent years (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or Form 5500 and attached schedules, if applicable, (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certificationaudited financial statements, if applicable, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed(C) actuarial valuation reports, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthif applicable.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 2 contracts
Samples: Merger Agreement (Chart Industries Inc), Merger Agreement (Chart Industries Inc)
Employee Matters. (a) Section 3.11 4.16(a) of the Company Parent Disclosure Schedule sets forth Schedules contains a true, true and complete and correct list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement, in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended (“ERISA”), whether or not tax-qualified and whether or not subject to ERISA, and each material employmentwhich is maintained, consultingsponsored, bonuscontributed to, incentive or deferred compensation, vacation, stock option required to be contributed to by Parent or other equity-based, severance, termination, retention, change any of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, its Subsidiaries for the benefit of any employee, current or former employee, director officer, director, retiree, independent contractor or former director consultant of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company Parent or any of its Subsidiaries or to any spouse or dependent of such individual, or under which any Company Parent or any of its Subsidiaries is obligated Parent ERISA Affiliate has or may reasonably be expected to contribute, or with respect to which have any Company or any of its Subsidiaries has any liability, direct or indirectLiability, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementas listed on Section 4.16(a) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Parent Disclosure Schedule identifies each Company Schedules, each, a “Parent Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed PlansPlan”).
(b) With respect to each Parent Benefit Plan, Parent has made available to the Company accurate, current, and complete copies of each of the following, as applicable: (i) Each of where the Company Parent Benefit Plans Plan has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISAreduced to writing, the Code and in each case the regulations thereunderplan document together with all amendments; (ii) each Company where the Parent Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements; (iv) copies of any summary plan descriptions, summaries of material modifications, employee handbooks and any other written communications relating to any Parent Benefit Plan; (v) in the case of any Parent Benefit Plan that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Parent Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Forms 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Parent Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (ix) copies of material notices, letters or other material correspondence from the Internal Revenue Service, Department of Labor, Pension Benefit Guaranty Corporation or other Governmental Entity relating to the Parent Benefit Plan.
(c) Each Parent Benefit Plan and any related trust (other than any Multiemployer Plan) has been established, administered and maintained in accordance with its terms and in material compliance with all applicable Laws (including ERISA and the Code). Each Parent Benefit Plan that is intended to be qualified as a Qualified Benefit Plan is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or has pending with respect to a prototype or volume submitter plan, can rely on an application for such determination opinion or notification letter from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, andprototype or volume submitter plan sponsor, to the knowledge of Seller, there is not any reason why any effect that such determination letter should be revoked; (iii) with respect to each Company Qualified Benefit Plan is so qualified and that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability nothing has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates occurred that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in adversely affect the qualified status of any material liability of the Companies Qualified Benefit Plan. Nothing has occurred with respect to any Parent Benefit Plan that has subjected or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such subject Parent or any Parent ERISA Affiliate to a claimpenalty under Section 502 of ERISA or to material tax or penalty under Section 4975 of the Code. Each Company All benefits, contributions and premiums relating to each Parent Benefit Plan that are due and payable have been timely paid in accordance with the terms of such Parent Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Parent Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(d) Neither Parent nor any Parent ERISA Affiliate has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Parent Benefit Plan; or (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.
(e) With respect to each Parent Benefit Plan (i) no such plan is a Multiemployer Plan; (ii) no such plan is a “nonqualified deferred compensation multiple employer plan” within the meaning of Section 409A(d)(1413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); and any award thereunder, in each case that is subject to Section 409A of the Code, (iii) no Legal Action has been operated in compliance in all material respects with Section 409A of initiated by the Code since January 1, 2005, based upon Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codetrustee for any such plan.
(cf) Neither Each Parent Benefit Plan can be amended, terminated or otherwise discontinued after the Companies nor Closing Date in accordance with its terms, without material liabilities to Parent or any of their Subsidiaries willits Affiliates other than any accrued benefits or ordinary administrative expenses typically incurred in a termination event. Parent has no commitment or obligation and has not made any representations to any employee, on and after the Closingofficer, have director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any liabilities or obligations for any Company Parent Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubtany collective bargaining agreement, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor in connection with the consummation of the transactions contemplated by this Agreement willor otherwise.
(g) Other than as required under Section 601 et. seq. of ERISA or other applicable Law, either alone no Parent Benefit Plan provides post-termination or in conjunction retiree welfare benefits to any individual for any reason, and neither Parent nor any Parent ERISA Affiliate has any Liability to provide post-termination or retiree welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree welfare benefits.
(h) There is no pending or, to Parent’s Knowledge, threatened Legal Action relating to a Parent Benefit Plan (other than routine claims for benefits), and no Parent Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Entity or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any other event, Governmental Entity.
(i) result in There has been no amendment to, announcement by Parent or any material payment or benefit becoming due or payableof its Affiliates relating to, or required change in employee participation or coverage under, any Parent Benefit Plan or collective bargaining agreement that would materially increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year, other than changes to be provided, benefits coverage as part of Parent’s annual benefits renewal processes. Neither Parent nor any of its Affiliates has any commitment or obligation or has made any representations to any director, employee or officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Parent Benefit Plan or any collective bargaining agreement.
(j) Each Parent Benefit Plan that is subject to Section 409A of the Companies Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. Parent does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by Parent and any of its Subsidiaries as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Parent Benefit Plan.
(l) Except as set forth in Section 4.16(l) of the Parent Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of Parent or its Subsidiaries to severance pay or any of their Subsidiaries or to such individuals in the aggregate, other payment; (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of accelerate the time of payment, funding or vesting, exercisability or funding increase the amount of compensation due to any such benefit individual; (iii) limit or compensationrestrict the right of Parent to merge, amend or terminate any Parent Benefit Plan; (iv) increase the amount payable under or result in any other material limitation on the right of the Companies or obligation pursuant to any of their Subsidiaries to amend, merge or terminate any Company Parent Benefit Plan or related trust, or Plan; (v) be considered a change result in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A“excess parachute payments” within the meaning of Section 280G(b) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code Code; or (Bvi) payments that would be nonrequire a “gross-deductible under Code Sections 162(mup” or other payment to any “disqualified individual” within the meaning of Section 280G(c) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthCode.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Merger Agreement (Tengasco Inc)
Employee Matters. (a) Section 3.11 The Company has made available to Buyer and/or its representatives all of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” following as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed PlansEmployee/IC Letter”).):
(b) (i) Each a list of the all employees (full-time and part-time) and independent contractors of each Group Company Benefit Plans has been operated setting forth their positions or titles, commencement date and administered current annual salary, wages, fees, contract rates, allowances, annual commission opportunity or bonus potential (fixed, declared, discretionary or otherwise), and other remuneration (including rights to receive retention, change in all material respects in accordance with applicable lawcontrol, includingtermination, but not limited to, ERISA, the Code and in each case the regulations thereunder; severance or other like payments);
(ii) each a list of all written employment, independent contractor or like contracts between a Group Company and its employees, independent contractors, directors, managers and officers, and all Employee Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the CodePlans (both written and oral), has received a favorable determination letter from the Internal Revenue Service, or has pending an application for including all such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, contracts: (A) as the benefits of which are contingent, or the last day terms of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom which are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim altered (other than routine claims for benefits) byinsignificant minor alterations), on behalf upon the occurrence of or against any a transaction of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of same type as the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of Contemplated Transactions (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, ); (iB) result in which provide for any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor specified term of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit employment/retainer or compensation otherwise payable guarantee; or required to be provided to any (C) which provide severance or other benefits (including benefits under Employee Benefit Plans) after the termination of employment or service of such directoremployee, employee or independent contractor, director, manager or officer in addition to those that would otherwise be normally available at Law in the absence of such contracts; but excluding such oral Contracts entered into in the Ordinary Course of Business which do not provide for any severance, termination or other like payments in addition to those which would otherwise be normally available at Law in the absence of such Contracts; and
(iii) result in the acceleration a summary description of all of the time salary and wage policies of payment, vesting, exercisability or funding each Group Company now in effect (including those for the granting of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, pay and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authorityremuneration increases). There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving Contractual Obligations by any Group Company to provide post-retirement benefits under any Employee Benefit Plans to any of the Companies its present or former employees or independent contractors.
(b) Except as would not result in a material Liability for any of their Subsidiaries. Each of the Companies and its Subsidiaries Group Company, each Group Company is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting Laws pertaining to employment and employment practices, (including those pertaining to terms and conditions of employment, wages and hours of work, discrimination, affirmative action, equal employment opportunity, immigration and work authorization, leaves, reasonable accommodations, whistleblower, facility closures and layoffs (including the Workers Adjustment and Retraining Notification Act of 1988 and any analogous state or local Laws), occupational safety and health, workers’ compensation, unemployment compensation, labor relations and collective bargaining, and classification of workers as independent contractors or employees).
(c) To the Company’s Knowledge, each employee and independent contractor of a Group Company is a citizen of that country as in which he or she is employed or has a current and valid work visa or otherwise has the lawful right to work in such country.
(d) Each Group Company has, since January 1, 2015, properly withheld and reported all amounts required by Law or by contract to be withheld and reported with respect to wages, salaries and other payments to its current and former employees and no Group Company is liable for any penalty for failure to withhold and/or report such amounts.
(e) Each Group Company is, and since January 1, 2015 has been, in compliance, in all material respects, with all Contractual Obligations and any other obligations due to or in connection with: (i) any of its current or former independent contractors or consultants; and (ii) any of its employees.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside None of the U.S. or (ii) for Group Companies is delinquent in the benefit payment of any individual whose principal place sums owing to any current or former independent contractor, consultant or employee of employment is outside such Group Company.
(g) There are no Contracts or arrangements with any of the U.S.directors, managers, officers, employees, independent contractors and/or consultants of a Group Company which, as a result of the completion of the Contemplated Transactions, by its terms would result in any of them ceasing to be a director, manager, officer, employee, independent contractor or consultant of such Group Company.
(h) To the Company’s Knowledge, no executive-level employee of any Group Company has threatened in writing to terminate his or her employment with such Group Company at any time within the one-year period preceding the date hereof.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true3.18(a) contains an accurate and complete list, complete and correct list as of the date hereof, of each material plan, program, policy, agreement, collective bargaining agreement or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, fringe, retirement, death, disability or medical benefits or other employee benefits or remuneration of any kind, including each employment, severance, retention, change in control or consulting plan, program arrangement or agreement, in each case whether written or unwritten or otherwise, funded or unfunded, including each “employee benefit plan,” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employmentwhich is or has, consultingwithin the six (6) years prior to the Closing Date, bonusbeen sponsored, incentive maintained, contributed to, or deferred compensationrequired to be contributed to, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, by the Company for the benefit of any employee, current or former employee, director independent contractor, consultant or former director of any the Company or any of its Subsidiaries entered into(each, maintained or contributed to by any a “Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributeEmployee”), or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) has or the Companies or their respective Subsidiaries shall continue to maintain or sponsor may have any material liability (collectively, the “Assumed Company Employee Plans”).
(b) The Company has made available to Parent correct and complete copies (or, if a plan is not written, a written description) of all Company Employee Plans and amendments thereto in each case that are in effect as of the date hereof, and, to the extent applicable, (i) Each all related trust agreements, funding arrangements and insurance contracts now in effect, (ii) the most recent determination letter or opinion letter received regarding the tax-qualified status of each Company Employee Plan, (iii) the most recent financial statements for each Company Employee Plan, (iv) the Form 5500 Annual Returns/Reports for the most recent plan year for each Company Employee Plan, (v) the current summary plan description for each Company Employee Plan, and (vi) all actuarial valuation reports related to any Company Employee Plans.
(c) (i) To the Knowledge of the Company, each Company Benefit Plans Employee Plan has been operated established, administered, and administered maintained in all material respects in accordance with its terms and in material compliance with applicable lawLaws, including, including but not limited to, ERISA, to ERISA and the Code and in each case the regulations thereunderCode; (ii) each to the Knowledge of the Company, all the Company Benefit Plan Employee Plans that are intended to be “qualified” within qualified under Section 401(a) of the meaning Code are so qualified and have received timely determination letters from the IRS or may rely upon a favorable opinion letter and, as of the date hereof, no such determination letter or opinion letter has been revoked nor, to the Knowledge of the Company, has any such revocation been threatened, and to the Knowledge of the Company, as of the date hereof, no circumstance exists that is likely to result in the loss of such qualified status under Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to the Company has timely made all material contributions and other material payments required by and due under the terms of each Company Benefit Employee Plan that is subject and applicable Law, and all benefits accrued under any unfunded Company Employee Plan have been paid, accrued or otherwise adequately reserved to Title IV the extent required by, and in accordance with GAAP; (iv) except to the extent limited by applicable Law, each Company Employee Plan can be amended, terminated or Section 302 otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent or the Company (other than ordinary administration expenses and in respect of ERISA or Section 412 or 4971 of the Code, accrued benefits thereunder); (Av) as of the last day date hereof, there are no material audits, inquiries or Legal Proceedings pending or, to the Knowledge of the most recent plan year ended Company, threatened by the IRS or the U.S. Department of Labor, or any similar Governmental Authority with respect to any Company Employee Plan; (vi) as of the date hereof, there are no material Legal Proceedings pending, or, to the Knowledge of the Company, threatened with respect to any Company Employee Plan (in each case, other than routine claims for benefits); and (vii) to the Knowledge of the Company, the Company has not engaged in a transaction that could subject the Company or any Subsidiary to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.
(d) No Company Employee Plan provides post-termination or retiree welfare benefits to any person for any reason, except as may be required by COBRA or other applicable Law, and neither the Company nor any Company ERISA Affiliate has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any Company Employee (either individually or to Company Employees as a group) or any other person that such Company Employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by COBRA or other applicable Law.
(e) No Company Employee Plan has within the three years prior to the date hereof, as been the subject of an examination or audit by a Governmental Authority or is the date hereof and as subject of the Closing Datean application or filing under, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitsis a participant in, includingan amnesty, without limitationvoluntary compliance, death self-correction or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred similar program sponsored by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; Governmental Authority.
(vif) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Employee Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, Code has been operated in compliance with such section and all applicable regulatory guidance (including, without limitation, proposed regulations, notices, rulings, and final regulations).
(g) The Company complies in all material respects with the applicable requirements of COBRA or any similar state statute with respect to each Company Employee Plan that is a group health plan within the meaning of Section 409A 5000(b)(1) of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeor such state statute.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dh) Neither the execution or delivery of this Agreement nor Agreement, the consummation of the Merger, nor any of the transactions contemplated by this Agreement will, will (either alone or in conjunction with upon the occurrence of any other event, additional or subsequent events): (i) result in to the Knowledge of the Company entitle any material payment current or benefit becoming due or payable, or required to be provided, to any former director, employee employee, contractor or independent contractor consultant of the Companies Company to severance pay or any of their Subsidiaries or to such individuals in the aggregate, other payment; (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of accelerate the time of payment, funding, or vesting, exercisability or funding increase the amount of compensation due to any such benefit individual, (iii) limit or compensationrestrict the right of the Company to merge, amend or terminate any Company Employee Plan, (iv) increase the amount payable or result in any other material limitation on the right of the Companies or any of their Subsidiaries obligation pursuant to amend, merge or terminate any Company Benefit Plan or related trustEmployee Plan, or (v) be considered a change result in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A“excess parachute payments” within the meaning of Section 280G(b) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Code.
(ei) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries The Company: (i) is in compliance in all material respects with all applicable laws Laws and collective bargaining agreements respecting hiring, employment, termination of employment, plant closing and mass layoff, employment discrimination, harassment, retaliation and employment practicesreasonable accommodation, leaves of absence, terms and conditions of employment, wages and hours of work, employee health and occupational safety safety, leasing and healthsupply of temporary and contingent staff, engagement of independent contractors, including proper classification of same, payroll taxes, and immigration with respect to Company Employees and contingent workers; and (ii) is in compliance with all applicable Laws relating to the relations between it and any labor organization, trade union, work council or other body representing Company Employees, except, in the case of clauses (i) and (ii) immediately above, where the failure to be in compliance with the foregoing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(fj) The Companies and Company is not party to, or subject to, any collective bargaining agreement or other agreement with any labor organization, work council or trade union with respect to any of its or their Subsidiaries do operations. No material work stoppage, slowdown or labor strike against the Company with respect to employees who are employed within the United States is pending, threatened or has occurred in the last two (2) years, and, to the Knowledge of the Company, no material work stoppage, slowdown or labor strike against the Company with respect to employees who are employed outside the United States is pending, threatened or has occurred in the last two (2) years. As of the date hereof, none of the Company Employees are represented by a labor organization, work council or trade union and, to the Knowledge of the Company, there is no organizing activity, Legal Proceeding, election petition, union card signing or other union activity or union corporate campaigns of or by any labor organization, trade union or work council directed at the Company, or any Company Employees. As of the date hereof, there are no Legal Proceedings, government investigations, or labor grievances pending, or, to the Knowledge of the Company, threatened relating to any employment related matter involving any Company Employee or applicant, including, but not maintain limited to, charges of unlawful discrimination, retaliation or harassment, failure to provide reasonable accommodation, denial of a leave of absence, failure to provide compensation or benefits, unfair labor practices, or other alleged violations of Law, except for any material of the foregoing which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(k) Neither the Company Benefit Plans nor any Company ERISA Affiliate has at any time contributed to or had any obligation to contribute to, or has had any liability (contingent or otherwise) with respect to (i) outside any "multiemployer plan", as that term is defined in Section 4001 of the U.S. or ERISA; (ii) for the any "employee benefit plan" subject to Title IV of any individual whose principal place of employment is outside ERISA or Section 412 of the U.S.Code; or (iii) any "multiple employer welfare arrangement" within the meaning of Section 3(40) of ERISA.
Appears in 1 contract
Samples: Merger Agreement (Ruthigen, Inc.)
Employee Matters. (a) Section 3.11 Schedule 4.1.13(a) lists as of the Company Disclosure Schedule sets forth a truedate hereof (and identifies the sponsor of) each material "Employee Pension Benefit Plan," as that term is defined in Section 3(2) of the ERISA, complete each material "Employee Welfare Benefit Plan," as that term is defined in Section 3(1) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans"), and correct list of each “other material retirement, pension, profit-sharing, money purchase, deferred compensation, incentive compensation, bonus, stock option, stock purchase, severance pay, unemployment benefit, vacation pay, savings, medical, dental, post-retirement medical, accident, disability, weekly income, salary continuation, health, life or other insurance, fringe benefit, or other employee benefit plan” , program, agreement, or arrangement maintained or contributed to by Seller or its Affiliates in respect of or for the benefit of any employee who, upon the Closing, will be a Transferred Employee or former employee of Seller, excluding any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of employees who, upon the Closing, will be Transferred Employees or former employees employed or formerly employed by Seller outside of the United States, as of the date hereof (collectively, together with the ERISA Plans, referred to hereinafter as the "Plans.") Schedule 4.1.13
(a) also includes a list of (i) each material written employment, severance, termination or similar-type agreement between Seller and its Affiliates and any employee who, upon the Closing, will be a Transferred Employee (the "Employment Agreements"), and (ii) each collective bargaining agreement between Seller and its Affiliates and collective bargaining representatives for those employees who, upon the Closing, will be Transferred Employees (the "Labor Contracts"). Except for retention bonuses, if any, paid or payable in connection with the Closing of the transactions contemplated by this Agreement and except as otherwise set forth in Schedule 4.1.13
(a) the execution and delivery of this Agreement by Seller and the performance of this Agreement by Seller will not directly result now or at any time in the future in the payment to any employee who, upon the Closing, will be a Transferred Employee of any severance, termination, or similar payments or benefits.
(b) Except as set forth on Schedule 4.1.13(b):
(i) Neither Seller nor any of its Affiliates, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof, has engaged in any transaction as a result of which Seller could be subject to any material liability pursuant to Section 409 of ERISA or to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the Code; and
(ii) Since the effective date of ERISA, no material liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by Seller (other than liability for premiums due to the PBGC), unless such liability has been, or prior to the Closing Date will be, satisfied in full.
(c) Except as set forth on Schedule 4.1.13(c), with respect to the ERISA Plans, other than those ERISA Plans identified on Schedule 4.1.13(d) as "multiemployer plans":
(i) the PBGC has not instituted proceedings to terminate any Plan that is subject to Title IV of ERISA;
(ii) none of the ERISA Plans has incurred an "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”Code), whether or not subject to ERISAwaived, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies last day of the most recent fiscal year of each Company Benefit Plan that Buyers shall assume pursuant of the ERISA Plans ended prior to Section 5.8(f) the date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).Agreement;
(b) (iiii) Each of the Company Benefit ERISA Plans has been operated and administered in all material respects in accordance with its provisions and with all applicable law, including, but not limited to, ERISA, Laws;
(iv) Each of the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan ERISA Plans that is intended to be “"qualified” " within the meaning of Section 401(a) of the Code and, to the extent applicable, Section 401(k) of the Code, has received a favorable determination letter from been determined by the Internal Revenue ServiceIRS to be so qualified, or and nothing has pending an application for occurred since the date of the most recent such determination from (other than the Internal Revenue Service with respect effective date of certain amendments to those provisions for which the Code, the remedial amendment period under Section 401(b) of the Code for which has not yet expired, and, to ) that would adversely affect the knowledge qualified status of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SECERISA Plans; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); and
(v) There are no Controlled Group Liability has been incurred pending material claims against any of the ERISA Plans by any Company, any of its Subsidiaries employee or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring beneficiary covered under any such liability; (vi) neither the Companies nor ERISA Plan, or otherwise involving any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit ERISA Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code benefits and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Coderoutine expenses).
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Employee Benefit Plans Plan has been operated and administered substantially in accordance with its material terms and in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code Applicable Law; and in each case the regulations thereunder; (ii) each Company all contributions to the Employee Benefit Plan intended Plans that have been required to be made in accordance with the terms of the Employee Benefit Plans and Applicable Laws have been timely made.
(b) Neither Seller nor any subsidiary, person or entity that, together with Seller, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code (each, an “qualifiedERISA Affiliate”) has maintained, contributed to or been obligated to maintain or contribute to, or has any actual or contingent liability under, any “defined benefit plan” (as defined in Section 3(35) of ERISA), a “multiemployer plan” (within the meaning of Section 401(a4001(a)(3) of the CodeERISA), has received a favorable determination letter from the Internal Revenue Serviceany plan providing post-retirement medical benefits, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies Seller nor any of their Subsidiaries contributes on behalf of employees of the Companies or ERISA Affiliate could incur any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) liability under Title IV of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither Other than claims for benefits submitted in the Companies nor ordinary course pursuant to an Employee Benefit Plan’s claims procedures, there are no actual or, to Seller’s Knowledge, threatened claims involving any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Employee Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither Seller is not a party to or otherwise bound by any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is any such contract or agreement presently being negotiated, nor, to Seller’s Knowledge, is there a representation campaign respecting any Employees of Seller. As of the execution or delivery date of this Agreement nor the consummation of the transactions contemplated by this Agreement willAgreement, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be providedthere is no pending or, to any directorSeller’s Knowledge, employee threatened, labor strike, dispute, walkout, work stoppage, slow-down or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.lockout involving Seller.
(e) No labor organization or group of employees of All Employees are located in the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthUnited States.
(f) The Companies and their Subsidiaries do not maintain No Employee Benefit Plan by its terms or Applicable Law would be required to be assumed by Buyer or any material Company Benefit Plans (i) outside of its Affiliates. Seller acknowledges that Seller retains all liability to provide continuation coverage pursuant to Section 4980B of the U.S. or (ii) Code from and after the Closing Date to current and former employees of Seller who are eligible for continuation coverage benefits to the benefit of any individual whose principal place of employment is outside of the U.S.extent required by law.
Appears in 1 contract
Employee Matters. (a) Section 3.11 Schedule 4.1.13(a) lists as of the Company Disclosure Schedule sets forth a truedate hereof (and identifies the sponsor of) each material "Employee Pension Benefit Plan," as that term is defined in Section 3(2) of the ERISA, complete each material "Employee Welfare Benefit Plan," as that term is defined in Section 3(1) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans"), and correct list of each “other material retirement, pension, profit-sharing, money purchase, deferred compensation, incentive compensation, bonus, stock option, stock purchase, severance pay, unemployment benefit, vacation pay, savings, medical, dental, post-retirement medical, accident, disability, weekly income, salary continuation, health, life or other insurance, fringe benefit, or other employee benefit plan” , program, agreement, or arrangement maintained or contributed to by Sellers or their Affiliates in respect of or for the benefit of any employee who, upon the Closing, will be a Transferred Employee or former employee of Sellers, excluding any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of employees who, upon the Closing, will be Transferred Employees or former employees employed or formerly employed by Sellers outside of the United States, as of the date hereof (collectively, together with the ERISA Plans, referred to hereinafter as the "Plans.") Schedule 4.1.13
(a) also includes a list of (i) each material written employment, severance, termination or similar-type agreement between Sellers and their Affiliates and any employee who, upon the Closing, will be a Transferred Employee (the "Employment Agreements"), and (ii) each collective bargaining agreement between Sellers and their Affiliates and collective bargaining representatives for those employees who, upon the Closing, will be Transferred Employees (the "Labor Contracts"). Except for retention bonuses, if any, paid or payable in connection with the Closing of the transactions contemplated by this Agreement and except as otherwise set forth in Schedule 4.1.13
(a) the execution and delivery of this Agreement by Sellers and the performance of this Agreement by Sellers will not directly result now or at any time in the future in the payment to any employee who, upon the Closing, will be a Transferred Employee of any severance, termination, or similar payments or benefits.
(b) Except as set forth on Schedule 4.1.13(b):
(i) Neither Seller nor any of their Affiliates, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof, has engaged in any transaction as a result of which Sellers could be subject to any material liability pursuant to Section 409 of ERISA or to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the Code; and
(ii) Since the effective date of ERISA, no material liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by Sellers (other than liability for premiums due to the PBGC), unless such liability has been, or prior to the Closing Date will be, satisfied in full.
(c) Except as set forth on Schedule 4.1.13(c), with respect to the ERISA Plans, other than those ERISA Plans identified on Schedule 4.1.13(d) as "multiemployer plans":
(i) the PBGC has not instituted proceedings to terminate any Plan that is subject to Title IV of ERISA;
(ii) none of the ERISA Plans has incurred an "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”Code), whether or not subject to ERISAwaived, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies last day of the most recent fiscal year of each Company Benefit Plan that Buyers shall assume pursuant of the ERISA Plans ended prior to Section 5.8(f) the date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).Agreement;
(b) (iiii) Each of the Company Benefit ERISA Plans has been operated and administered in all material respects in accordance with its provisions and with all applicable law, including, but not limited to, ERISA, Laws;
(iv) Each of the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan ERISA Plans that is intended to be “"qualified” " within the meaning of Section 401(a) of the Code and, to the extent applicable, Section 401(k) of the Code, has received a favorable determination letter from been determined by the Internal Revenue ServiceIRS to be so qualified, or and nothing has pending an application for occurred since the date of the most recent such determination from (other than the Internal Revenue Service with respect effective date of certain amendments to those provisions for which the Code, the remedial amendment period under Section 401(b) of the Code for which has not yet expired, and, to ) that would adversely affect the knowledge qualified status of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SECERISA Plans; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); and
(v) There are no Controlled Group Liability has been incurred pending material claims against any of the ERISA Plans by any Company, any of its Subsidiaries employee or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring beneficiary covered under any such liability; ERISA Plan, or otherwise involving any such ERISA Plan (viother than routine claims for benefits and routine expenses).
(d) neither the Companies nor any of their Subsidiaries contributes Except as set forth on behalf of employees Schedule 4.1.13(d), none of the Companies or any of their Subsidiaries to ERISA Plans is a “"multiemployer pension plan” (," as such that term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries and with respect to each Company Benefit Plan any such multiemployer plans (as so defined) listed in respect of current Schedule 4.1.13(d), Sellers have not made or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Codeincurred, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement willwill not result in Sellers making or incurring, either alone a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in conjunction with any other eventSections 4203 and 4205 of ERISA that would result in the incurrence of a material liability by Sellers.
(e) Except as set forth on Schedule 4.1.13(e), as of the date hereof, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor none of the Companies employees who, upon the Closing, will be Transferred Employees are represented by a labor union or any of their Subsidiaries or to such individuals in the aggregatelabor organization, and (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided Sellers are not subject to any such directorcollective bargaining agreement covering any employee who, employee or independent contractorupon the Closing, (iii) result in the acceleration will be a Transferred Employee. As of the time of paymentdate hereof, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockoutswork stoppages or lockouts by or with respect to any employee who, arbitrations or grievancesupon the Closing, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and will be a Transferred Employee covered by collective bargaining agreements respecting employment and employment practicesagreements. Except as set forth on Schedule 4.1.13(e), terms and conditions to the Knowledge of employmentSellers, wages and hours and occupational safety and healthduring the twelve (12) months preceding the date of this Agreement, there have not been any union organizational campaigns by or directed at employees who, upon the Closing, will be Transferred Employees.
(f) The Companies Sellers will make available to Buyer, not less than five (5) days prior to the Closing Date, a list of those employees who, upon Closing, will be Transferred Employees and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside who are participating in or have participated in the health or dependent care reimbursement accounts of Sellers, together with the U.S. or (ii) for elections made prior to the benefit of any individual whose principal place of employment is outside of Closing Date with respect to such accounts through the U.S.Closing Date.
Appears in 1 contract
Employee Matters. (a) Section 3.11 Disclosure Schedule 3.1.10(a) lists, as of the date hereof, each material "employee pension benefit plan," as that term is defined in section 3(2) of ERISA; each material "employee welfare benefit plan," as that term is defined in section 3(1) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans"); and each other material retirement, pension, profit-sharing, money purchase, deferred compensation, excess benefits, incentive compensation, bonus, stock option, stock purchase, stock bonus, stock appreciation, phantom stock, restricted stock, severance pay, unemployment benefit, vacation pay, savings, medical, dental, post-retirement medical, post-retirement life, accident, disability, weekly income, salary continuation, health, life, sick pay, tuition refund, or other insurance, fringe benefit, or other employee benefit plan, program, agreement, or arrangement maintained or contributed to by the Company, Seller or their ERISA Affiliates in respect of or for the benefit of (i) any employee (including all full-time and part-time employees, employees on workers' compensation, military leave with re-employment rights under federal law, maternity leave, leave under the Family Medical Act of 1993 or short term disability and employees on approved leave of absence with a legal or contractual right to reinstatement) of the Company or of Seller or its Affiliates who provides substantially all of his or her services to or for the Acquired Business and, in each case, who is not a Retained Business Employee (any such employee referred to hereinafter as an "Employee") or (ii) any former Employee, but excluding any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of Employees or former Employees employed or formerly employed outside of the United States (collectively, together with the ERISA Plans, referred to hereinafter as the "Plans"). Disclosure Schedule sets forth 3.1.10
(a) also lists, as of the date hereof, any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of Employees or former Employees employed or formerly employed outside of the United States (collectively referred to hereinafter as the "Foreign Plans"). There are no material written employment, severance, termination or similar-type agreements between any Employee who, upon the Closing, will be a trueTransferred Employee and the Company, Seller or any Affiliate of either. With respect to each Plan and each Foreign Plan, Seller has made available to Buyer a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and correct list to the extent applicable: (i) any related trust agreement or other funding instrument; (ii) the most recent determination letter, if applicable; (iii) any Summary Plan Description (to the extent required by applicable Law); and (iv) for the two (2) most recent years (A) the Form 5500 and attached schedules, if applicable, (B) audited financial statements, if applicable, and (C) actuarial valuation reports, if applicable.
(b) Except pursuant to agreements permitted by Section 4.1.1(d)(i), the execution and delivery of each “employee benefit plan” this Agreement by Seller and the performance of this Agreement by Seller will not directly result now or at any time in the future in the payment or in the acceleration of payment to any Employee of any severance, termination, or similar payments or benefits.
(c) Neither Seller nor any of its ERISA Affiliates, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof, has engaged in any transaction as a result of which the Company could be subject to any material liability pursuant to Section 409 of ERISA or to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the Code. Since the effective date of ERISA, no material liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by Seller, with respect to the Acquired Business, or by the Company (other than liability for premiums due to the PBGC), unless such liability has been, or prior to the Closing Date will be, satisfied in full.
(d) With respect to the Plans, other than those ERISA Plans identified on Disclosure Schedule 3.1.10(e) as "multiemployer plans":
(i) the PBGC has not instituted proceedings to terminate any ERISA Plan that is subject to Title IV of ERISA;
(ii) none of the ERISA Plans has incurred an "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”Code), whether or not subject to ERISAwaived, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies last day of the most recent fiscal year of each Company Benefit Plan that Buyers shall assume pursuant of the ERISA Plans ended prior to Section 5.8(f) the date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).Agreement;
(b) (iiii) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with its provisions and with all applicable law, including, but not limited to, ERISA, Laws;
(iv) Each of the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan ERISA Plans that is intended to be “"qualified” " within the meaning of Section 401(a) of the Code and, to the extent applicable, Section 401(k) of the Code, has received a favorable determination letter from been determined by the Internal Revenue ServiceIRS to be so qualified, or and nothing has pending an application for occurred since the date of the most recent such determination from (other than the Internal Revenue Service with respect effective date of certain amendments to those provisions for which the Code, the remedial amendment period under Section 401(b) of the Code for which has not yet expired, ) that would adversely affect the qualified status of any of such ERISA Plans; and, to the knowledge
(v) As of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as there are no pending material claims against any of the date hereof Plans by any Employee, former Employee, or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits and as routine expenses).
(e) None of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities Plans is a "multiemployer plan," as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.)
Appears in 1 contract
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule SCHEDULE 5.16 sets forth a true, complete and correct list of each “of:
(i) all "employee benefit plan” plans", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether and all bonus or not subject to ERISAother incentive compensation, and each material employment, consulting, bonus, incentive or deferred compensation, vacationemployee loan, stock option or other equity-basedsalary continuation, severance, terminationsick days, retentionstock award, change of controlstock option, profit-sharingstock purchase, fringe benefit tuition assistance, vacation pay, service award, company car, club or other similar planmembership agreements, programpolicies or arrangements (collectively, agreement "Benefit Plans") maintained or commitment, whether written with respect to which contributions or unwritten, benefit payments would be made for the benefit of any employee, former employee, director current or former employee or director of any Darby Company by DOIL or by any other Person that, togethex xxth DOIL, wouxx xe treated as a single employer for purposes ox Xxction 414 of the Code (an "ERISA AFFILIATE"); and
(ii) all employment, consulting, individual compensation or termination of service agreements ("EMPLOYEE ARRANGEMENTS") between DOIL or any of its Subsidiaries entered intoERISA Affiliates on the one hand, maintained and anx xx their respective current or contributed to by any Company former employees, directors or any of its Subsidiaries or other individuals, on the other hand, as to which any Darby Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)Liability.
(b) With respect to each Bexxxxx Plan and Employee Arrangement, a complete and correct copy of each of the following documents (if applicable) has been provided or made available to Purchaser: (i) Each of the Company most recent plan, agreement, policy or other document constituting the Benefit Plans has been operated Plan or Employee Arrangement, and administered in related trust documents, and all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunderamendments thereto; (ii) each Company Benefit Plan intended to be “qualified” within the meaning most recent summary plan description, and all related summaries of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revokedmaterial modifications; (iii) with respect to each Company the most recent Form 5500 (including schedules); (iv) the most recent IRS determination letter; and (v) the most recent actuarial reports (including for purposes of Financial Accounting Standards Board report no. 87, 106 and 112).
(c) No Benefit Plan that constitutes a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or is subject to Title IV or of ERISA.
(d) The Benefit Plans intended to qualify under Section 302 401 of ERISA or the Code are so qualified, and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 412 or 4971 501(a) of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), . Nothing has occurred with respect to current the operation of the Benefit Plans which could cause the loss of such qualification or former employees exemption, or directors the imposition of any Company Liability, penalty or its Subsidiaries beyond their retirement Tax under ERISA or the Code.
(e) The Benefit Plans and Employee Arrangements comply and have complied in all material respects with all applicable provisions of ERISA and other termination Laws. There are no pending or, to the Knowledge of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Darby Company, threatened Legal Proceedings relating to or in coxxxxxion with the Benefit Plans or Employee Arrangements, or the assets of any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by), on behalf nor does any Darby Company have Knowledge of or against any of the Company Benefit Plans or any trusts related thereto facts which could reasonably be expected xx xxpected to result in form the basis for any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodeLegal Proceeding.
(cf) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company No Benefit Plan provides retiree life or retiree health benefits coverage beyond the last day of the month in which is not an Assumed Plan a participant's termination of employment with a Darby Company occurs except as may be required under Part 6 of Tixxx I of ERISA and at the sole expense of the participant or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planparticipant's beneficiary.
(dg) Neither Except as otherwise expressly set forth in this Agreement, neither the execution or and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, hereby will (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, Darby Company; (ii) materially increase the amount or value of any benefit or compensation benefits otherwise payable under xxx Benefit Plan or required to be provided to any such director, employee Employee Arrangement or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability payment or funding vesting of any such benefit benefits.
(h) All contributions required by Law or compensation, (iv) result in any material limitation on the right terms of the Companies Benefit Plans have been fully and timely made.
(i) No Darby Company is a party to any labor or collective bargainixx xxreement and there are no labor or collective bargaining agreements which pertain to employees of any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trustDarby Company. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 employees of the Code or Darby Companies are represenxxx xy any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) labor organization. No labor xxxxx organization or group of employees of the Companies or any of their Subsidiaries Darby Company has made a pending demand for recognition or certificationcerxxxxxation, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or or, to the Knowledge of any Darby Company, threatened in writing to be brought or filed, with the filed witx xxx National Labor Relations Board or any other labor relations tribunal or authority. There are no organizing activities involving any Darby Company pending with any labor organization or group of empxxxxxs of any Darby Company.
(j) There are no material organizing activities, strikes, work stoppagesstoxxxxxs, slowdowns, lockouts, material arbitrations or grievances, material grievances or other material labor disputes pending or or, to the Knowledge of any Darby Company, threatened in writing against or involving any Darxx Xompany. There are no unfair labor practice charges, grixxxxxes or complaints pending or, to the Knowledge of the Companies any Darby Company, threatened in writing by or on behalf of any empxxxxx or group of their Subsidiaries. Each employees of the Companies and its Subsidiaries is in compliance in all material respects 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 healthany Darby Company.
(fk) The Companies and their Subsidiaries do not maintain There are no complaints, charges or claxxx against any material Darby Company Benefit Plans (i) outside of pending or, to the U.S. or (ii) for the benefit Knowledge of any individual whose principal place Darby Company, xxxxatened in writing to be brought or filed, wxxx xny Governmental Body based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment by any Darby Company, of any individual.
(l) Each Darby Company is outside xx xxmpliance with all Laws and Orders relating xx xhe employment of labor, including all such Laws and Orders relating to wages, hours, collective bargaining, discrimination, civil rights, safety and health workers' compensation and the U.S.collection and payment of withholding and/or Social Security Taxes and similar Taxes.
Appears in 1 contract
Employee Matters. (a) Section 3.11 3.9(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit all Company Benefit Plans, other than plans or arrangements for Subsidiary employees located outside of the United States that are not material to the Company and its Subsidiaries, taken as a whole (such listed plans, the "Disclosed Company Benefit Plans").
(b) None of the Company Benefit Plans is a "multiemployer plan” " as defined in Section 3(33(37) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to a "multiple employer" plan within the meaning of Section 4064 of ERISA, and each material employmenta "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), consultinga "funded welfare plan" within the meaning of Section 419 of the Code, bonusor sponsored by a human resources or benefits outsourcing entity, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit professional employer organization or other similar plan, program, agreement vendor or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise provider.
(including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementc) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each No Company Benefit Plan that Buyers shall assume pursuant is covered by Title IV of ERISA or subject to Section 5.8(f) 412 of this Agreement (including the LFG Deferred Compensation Plans) Code or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)Section 302 of ERISA.
(b) (id) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, covering all applicable Tax Law changes and, to the knowledge Knowledge of Sellerthe Company, there is not are no existing circumstances or events that would reasonably be expected to adversely affect the qualified status of any reason why Company Benefit Plan.
(e) There are no pending legal proceedings which have been asserted or instituted or, to the Knowledge of the Company, have been threatened against any of the Company Benefit Plans, or the assets of any such determination letter should be revoked; (iii) plan with respect to each the operation of any such plan (other than routine claims for benefits).
(f) Each of the Company Benefit Plans has been maintained and administered in compliance with its terms and provisions of applicable Law (including ERISA and the Code), except for any failure to so comply that would not, individually or in the aggregate, reasonably be expected to result in a material liability of the Company or any of its Subsidiaries.
(g) No Company Benefit Plan that is subject to Title IV or Section 302 of ERISA other arrangement provides medical or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), ) with respect to current or former employees or directors of any the Company or its Subsidiaries beyond their retirement or other termination of serviceemployment except as required by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA").
(h) Since January 31, 2012, there have been no amendments to any Company Benefit Plan, nor, to the Knowledge of the Company, has the Company or any of its Subsidiaries communicated to any current or former employee any binding commitment to amend or modify any Company Benefit Plan or to establish or implement any other than employee or retiree benefit or compensation arrangement, in either case that would materially increase the cost or expense of the Company Benefit Plans to the Company and its Subsidiaries.
(Ai) coverage mandated The execution, delivery and performance of this Agreement by applicable law the Company and the consummation of the Transactions will not (alone or in combination with any other event) result in (i) an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee, officer, director or independent contractor of the Company or any Subsidiary or (Bii) death benefits any new or retirement benefits increased or accelerated funding obligation with respect to any Company Benefit Plan.
(j) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of the Transactions will (alone or in combination with any other event) entitle any current or former employee, officer or director of the Company or its Subsidiaries to severance pay or any other payment or result in any payment to any "disqualified individual" (as such term is defined in Treasury Regulation Section 1.280G-1) that could reasonably be construed, individually or in combination with any other such payment, to constitute an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(k) No Company Benefit Plan has assets that include securities issued by the Company or any of its Subsidiaries.
(l) Neither the Company nor any of its Subsidiaries has filed, or is considering filing, an application under the IRS Employee Plans Compliance Resolution System or the Department of Labor's Voluntary Fiduciary Correction Program or Delinquent Filer Voluntary Compliance Program with respect to any “employee pension Company Benefit Plan.
(m) Each Company Benefit Plan which is a "nonqualified deferred compensation plan” " (within the meaning of Section 409A of the Code) has been operated and administered since January 1, 2005 in compliance with Section 409A of the Code, and has been, since January 1, 2009, in documentary compliance with Section 409A of the Code.
(n) Neither the Company nor any Subsidiary has any obligation (current or otherwise) to pay, gross up, or otherwise indemnify any individual for any taxes imposed under Code Section 409A or Code Section 4999. Neither the Company nor any Subsidiary has any obligation to any Person to cause any Company Benefit Plan to comply with Section 409A of the Code.
(o) All contributions required to be made under the terms of any Company Benefit Plan have been timely made or have been reflected in the financial statements of the Company included in the Company SEC Reports filed prior to the date hereof.
(p) Neither the Company nor any of its Subsidiaries, nor any of their respective directors, officers or employees, 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, respectively), has engaged in any transaction, act or omission to act in connection with any Company Benefit Plan that would reasonably be expected to result in the imposition of a material penalty or fine pursuant to Section 502 of ERISA, material damages pursuant to Section 409 of ERISA or a material tax pursuant to Section 4975 of the Code.
(q) No disallowance of a deduction under Section 162(m) of the Code for any amount paid or payable by the Company or any Subsidiary thereof has occurred since January 31, 2006, or is reasonably expected to occur.
(r) Neither the Company nor any of its Subsidiaries has incurred or expects to incur any material liability (including additional contributions, fines, taxes or penalties) as a result of a failure to administer or operate any Company Benefit Plan that is a "group health plan" (as such term is defined in Section 3(2607(1) of ERISA); ERISA or Section 5000(b)(1) of the Code, or in 45 Code of Federal Regulations Section 160.103, as applicable) in compliance with the applicable requirements of COBRA, or the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder.
(vs) no Controlled Group Liability has been incurred by any Company, Neither the Company nor any of its Subsidiaries or has any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk unfunded liabilities pursuant to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; Company Benefit Plan which is an "employee pension benefit plan" (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 3(2) of ERISA; ) that is not intended to be qualified under Section 401(a) of the Code.
(t) No Company Benefit Plan provides for the payment of severance, termination, or change in control benefits.
(u) Except as required to maintain the tax-qualified status of any Company Benefit Plan intended to qualify under Section 401(a) of the Code, no condition or circumstance exists that would prevent or restrict the amendment or termination of any Company Benefit Plan without liability to the Company or any Subsidiary thereof.
(v) The Company and its Subsidiaries have classified all individuals who perform services for them correctly under each Company Benefit Plan, ERISA, the Code and all other applicable Laws as common law employees, independent contractors or leased employees, except for any misclassifications that would not reasonably be expected to have a Material Adverse Effect on the Company.
(w) True and complete copies of each Disclosed Company Benefit Plan, together with all amendments thereto, including, in the case of any Company Benefit Plan not set forth in writing, a written description thereof, and, to the extent applicable, (i) all current summary plan descriptions and any summaries of material modification, (ii) all current trust agreements, declarations of trust and other documents establishing funding arrangements (and all amendments thereto and the latest financial statements thereof), (iii) the annual report on IRS Form 5500-series, including any attachments thereto, for each of the last three (3) plan years, (iv) the most recent actuarial valuation report, (v) the most recent determination letter and/or opinion letter, (vi) any materials relating to any government investigation or audit or any submissions under any voluntary compliance procedures since January 31, 2006, and (vii) all Contracts relating and material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years Plan, including service provider agreements, insurance Contracts, annuity Contracts, investment management agreements, and Collective Bargaining Agreements have been paid delivered or accrued made available to Parent.
(x) Each Non-U.S. Plan that is capable of being formally approved or qualified by, or registered with, the appropriate taxation, social security, supervisory, fiscal or other applicable Governmental Authority in accordance with generally accepted accounting principles; the relevant jurisdiction, in order to obtain tax approved, favored or qualified status in such jurisdiction, has been so approved, qualified or registered, and to the Knowledge of the Company, there has been no act or omission which may cause such approved, qualified or registered status to be withdrawn.
(viiiy) neither No claim has been made or threatened in writing against the Companies nor Company or the trustees or administrators of any of their Subsidiaries has engaged in a transaction the Non-U.S. Plans, or, to the Knowledge of the Company, against any person whom the Company is or may be liable to indemnify or compensate, in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim Non-U.S. Plans (other than routine claims for benefits).
(z) byTo the Knowledge of the Company, on behalf the Pensions Regulator has not taken any action in relation to the UK Plan, including the commencement of investigations or against any the issue of: (i) an improvement notice under s.13 of the Pensions Acx 0000; (ii) a third party notice under s.14 of the Pensions Acx 0000; (iii) a contribution notice under s.38 of the Pensions Acx 0000; or (iv) a financial support direction under s.43 of the Pensions Acx 0000.
(aa) The representations and warranties in this Section 3.9 and Section 3.12 are the sole and exclusive representations and warranties of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code concerning employee and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeemployee benefit plan matters.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each As of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, to the Company’s knowledge, (1) no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee, nor does the Company have a present intention to terminate the employment of any of the date hereof foregoing, (2) each officer and as Key Employee of the Closing DateCompany is currently devoting all of his or her business time to the conduct of the Company’s business, (3) the actuarially determined present value Company is not aware that any of all “benefit liabilities” within its officers and Key Employees is planning to work less than full-time for the meaning Company in the future, (4) the employment of Section 4001(a)(16each employee of the Company is terminable at the will of the Company, (5) except as required by law, upon termination of ERISA did and does not exceed the then current value employment of assets of any such Company Benefit Plan employees, no severance or other payments will become due, and (B6) the amount Company has no policy, practice, plan, or program of such liabilities as paying severance pay or any form of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed severance compensation in connection with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than employment services.
(Aii) coverage mandated by applicable law or (B) death benefits or retirement benefits under any Any “employee pension nonqualified deferred compensation plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award the guidance thereunder) under which the Company makes, in each case that is subject obligated to Section make or promises to make, payments (each, a “409A of the Code, has been operated in compliance Plan”) complies in all material respects respects, in both form and operation, with the requirements of Section 409A of the Code since January 1and the guidance thereunder. No payment to be made under any 409A Plan is, 2005or will be, based upon a good faith, reasonable interpretation subject to the penalties of (ASection 409A(a)(1) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codethat could reasonably be expected to have a Material Adverse Effect.
(ciii) Neither As of the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubtdate hereof, the LandAmerica Financial GroupCompany has not made any representations regarding equity incentives or compensation to any officer, Inc. Cash Balance Plan is not an Assumed Planemployees, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes of meetings of the Company’s Board of Directors, the representations set forth herein, or the Disclosure Schedule.
(div) Neither the execution or delivery of this Agreement nor the consummation As of the transactions contemplated by date on which this Agreement willrepresentation and warranty is made or deemed made, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor each of the Companies or any of their Subsidiaries or Credit Parties and the ERISA Affiliates have made all required contributions to such individuals in the aggregateeach Plan, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certificationPension Plan, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, Multiemployer Plan in accordance with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activitiesterms of each such Plan, strikesPension Plan, work stoppagesand Multiemployer Plan and the requirements of all applicable laws, slowdownsand each Plan and each Pension Plan has been established, lockoutsmaintained, arbitrations or grievancesfunded, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is administered in compliance in all material respects with all applicable laws and the terms of each Plan or Pension Plan.
(v) As of the date on which this representation and warranty is made or deemed made, no Credit Party, any other Subsidiary of the Company or any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to any Plan or Pension Plan, and no event, transaction or condition has occurred or exists that could, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by any Credit Party, any other Subsidiary of the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of any Credit Party, any other Subsidiary of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to Section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or Section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Pension Plan, other than such liabilities or Liens as would not be individually or in the aggregate material.
(vi) As of the date on which this representation and warranty is made or deemed made, no Pension Plan has an Unfunded Pension Liability that is material. No Credit Party, any other Subsidiary of the Company or any ERISA Affiliate has incurred withdrawal liability under Section 4201 or 4204 of ERISA in respect of any Multiemployer Plan that has not been satisfied in full.
(vii) As of the date hereof, the Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the Company’s knowledge, threatened, nor is the Company aware of any labor organization activity involving its employees.
(viii) As of the date hereof, the Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, and collective bargaining agreements respecting bargaining. The Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.
(ix) As of the date hereof, each former Key Employee whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.
(x) As of the date hereof, to the Company’s knowledge, none of the Key Employees or directors of the Company has been (a) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (c) subject to any order, judgment, or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (d) found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated any federal or state securities, commodities, or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.
(xi) As of the date hereof, each person who, pursuant to any benefit, bonus or incentive plan of the Company, holds any currently outstanding shares of Common Stock or other securities of the Company or any option, warrant or right to acquire such shares or other securities, has entered into or is otherwise bound by, an agreement granting the Company (a) the right to repurchase the shares for the original purchase price, or to cancel the option, warrant or right, in the event the holder’s employment practicesor services with the Company terminate for any reason, subject to release of such repurchase or cancellation right on terms and conditions specified by the Company’s Board of employmentDirectors, wages and hours and occupational safety and health(b) a right of first refusal with respect to all such shares.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Redaptive, Inc.)
Employee Matters. (a) Neither the Company nor the Company Subsidiary is party to any Contract regarding collective bargaining or other Contract with any labor or trade union or collective bargaining group representing any employee of the Company or the Company Subsidiary, nor, to the Company’s Knowledge, does any labor or trade union or collective bargaining agent represent any employee of the Company or the Company Subsidiary. No Contract regarding collective bargaining has been requested by, or is under discussion between management of the Company or the Company Subsidiary (or any management group or association of which the Company or the Company Subsidiary is a member or otherwise a participant) and any group of employees of the Company or the Company Subsidiary, nor are there any representation proceedings or petitions seeking a representation proceeding presently pending against the Company or the Company Subsidiary, nor, to the Company’s Knowledge, are there any other current activities to organize any employees of the Company or the Company Subsidiary into a collective bargaining unit. There are no unfair labor practice charges or complaints pending or, to the Company’s Knowledge, threatened against the Company or the Company Subsidiary.
(b) Section 3.11 3.09(b) of the Company Disclosure Schedule sets forth a true, accurate and complete and correct list of the Company’s and each “employee benefit plan” Company Subsidiary’s directors, officers, employees, consultants and independent contractors, and includes a listing of each of such director’s, officer’s and employee’s compensation terms (including, but not limited to date of commencement of employment, salary, bonuses, stock options and warrants (if any), social benefits, fringe benefits and accrued vacation). Except as defined set forth in Section 3(33.09(b) of the Employee Retirement Income Security Act Company Disclosure Schedule, each of 1974the Company’s and the Company Subsidiary’s employees works in Israel. Neither the Company nor the Company Subsidiary is delinquent in any material payment to any of its employees for any wages, salaries, commissions, bonuses or other direct compensation for any services performed by any such employees. Except as amended indicated in Section 3.09(b) of the Company Disclosure Schedule, upon termination of the employment of any employees, neither the Company, the Company Subsidiary nor the Parent will by reason of the transaction contemplated pursuant to this Agreement or anything done prior to the Closing Date be liable to any of such directors, officer or employees for severance pay or any other payments (“ERISA”other than accrued salary, vacation or such pay in accordance with normal policies or amount required to be paid under applicable Laws), whether or not subject .
(c) The Company has previously delivered to ERISA, Parent true and each material complete copies of all employment, consulting, bonus, incentive termination and severance Contracts with or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of, or otherwise relating to, any directors, officers, employees, consultants or independent contractors of the Company and the Company Subsidiary. Except as set forth on Section 3.09(c) of the Company Disclosure Schedule, none of the execution, delivery or performance of any employeeTransaction Document by the Company or the consummation by the Company of the transactions contemplated hereby or thereby will result in any obligation to pay any directors, officers, employees, consultants, independent contractors, former employeedirectors, director officers, employees, consultants or former director independent contractors of any the Company or the Company Subsidiary severance pay or termination, retention or other benefits.
(d) Except as set forth on Section 3.09(d) of the Company Disclosure Schedule, no current employee has given notice to, or received notice from, the Company or any of its Subsidiaries entered into, maintained Representatives that any such employee’s employment or contributed to by any service may be terminated or advised the Company or any Company Subsidiary of its Subsidiaries an intention to give such notice to, or is expected to which any receive notice from, the Company, the Company Subsidiary or any of its Subsidiaries their Representatives that any such employee’s employment or service may be terminated.
(e) Except as set forth on Section 3.09(e) of the Company Disclosure Schedule, the Company has never maintained, contributed to or incurred any Liability under any Benefit Plan that is obligated or was subject to contribute, ERISA or with respect to which any Company the U.S. Tax Code or any Foreign Pension Plan. There is no, nor has there ever been any, individual, person or entity that together with the Company has ever been treated as a single-employer within the meaning of its Subsidiaries has any liabilitySection 414(b), direct or indirect(c), contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementm) or otherwise providing benefits to any current, former (o) of the U.S. Tax Code or future employee, officer or director Section 4001(b) of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof ERISA.
(such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). f) Section 3.11 3.09(f) of the Company Disclosure Schedule identifies sets forth a current, accurate and complete list of each Benefit Plan.
(g) The Company has delivered or made available to Parent current, accurate and complete copies of (i) each Benefit Plan that Buyers shall assume pursuant has been reduced to Section 5.8(fwriting and all amendments thereto and (ii) of this Agreement (including the LFG Deferred Compensation Plans) all trust agreements, insurance contracts, investment management agreements, investment advisory agreements, administrative services agreements or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)similar agreements maintained in connection with any Benefit Plan.
(bh) (i) No person previously employed by the Company or the Company Subsidiary has now or may have a right to return to work or a right to be reinstated or re-engaged by any applicable Law. Each of the Company Benefit Plans and the Company Subsidiary has been operated and administered at all relevant times complied in all material respects with all its obligations under Law with respect to any aspect of the employment of its employees, including with respect to the health and safety at work of its employees, and, except as set forth in accordance with applicable lawSection 3.09 of the Company Disclosure Schedule, includingthere are no material claims pending or, but to the Company’s Knowledge, capable of arising or threatened by any party in respect of any accident or injury which is not limited tofully covered by insurance of the Company or the Company Subsidiary.
(i) To the Company’s Knowledge, ERISAno employees of the Company or the Company Subsidiary are in violation of any term of any employment contract, non-disclosure agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended right of any such employee to be employed by the Company or the Company Subsidiary because of the nature of the business conducted or presently proposed to be conducted by the Company or to the use of trade secrets or proprietary information of others.
(j) With respect to employees of the Company or the Company Subsidiary who reside or work in Israel (the “qualified” within the meaning of Israeli Employees”), except as set forth in Section 401(a3.09(j) of the Code, has received a favorable determination letter from Company Disclosure Schedule: (a) the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) employment of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that Israeli Employee is subject to Title IV termination upon not more than thirty (30) days prior written notice under the termination notice provisions included in the employment agreement with such Israeli Employee or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEClegal requirements; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (viib) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any obligations of the Company Benefit Plans or the Company Subsidiary to provide statutory severance pay to all Israeli Employees pursuant to the Severance Pay Law (5723-1963) are fully funded or accrued on the Financial Statements; (c) no Israeli Employee’s employment by the Company or the Company Subsidiary requires any trusts related thereto which special license, permit or other governmental authorization; (d) there are no unwritten policies, practices or customs of the Company or the Company Subsidiary that, by extension, could reasonably be expected to result entitle any Israeli Employee to benefits in addition to what such Israeli Employee is entitled to by applicable legal requirements or under the terms of such Israeli Employee’s employment agreement (including unwritten customs or practices concerning bonuses, the payment of statutory severance pay when it is not required under applicable legal requirements); (e) all amounts that Company or the Company Subsidiary is legally or contractually required either (i) to deduct from Israeli Employees’ salaries or to transfer to such Israeli Employees’ pension or provident, life insurance, incapacity insurance, continuing education fund or other similar funds or (ii) to withhold from their Israeli Employees’ salaries and benefits and to pay to any material liability of Governmental Authority as required by the Companies ITA and National Insurance Law or any of their Subsidiaries andotherwise, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunderhave, in each case that is subject case, been duly deducted, transferred, withheld and paid, and neither the Company nor the Company Subsidiary have any outstanding obligation to Section 409A make any such deduction, transfer, withholding or payment; (f) each of the Code, has been operated in compliance in all material respects with Section 409A of Company and the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries Subsidiary is in compliance in all material respects with all applicable laws legal requirements and collective bargaining agreements respecting employment and contracts relating to employment, employment practices, wages, bonuses, pension benefits and other compensation matters and terms and conditions of employmentemployment related to Israeli Employees, wages including but not limited to The Prior Notice to the Employee Law, 2002, The Notice to Employee (Terms of Employment) Law, 2002, the Prevention of Sexual Harassment Law, 1998, the Hours of Work and hours Rest Law, 1951, the Annual Leave Law, 1951, and occupational safety The Employment by Human Resource Contractors Law, 1996; and health.
(fg) neither the Company nor the Company Subsidiary has engaged any consultants, sub-contractors or freelancers. The Companies Company and their Subsidiaries do the Company Subsidiary are not maintain any material Company Benefit Plans (i) outside subject to, and no employee of the U.S. Company or the Company Subsidiary benefits from, any extension order [tzavei harchava]. The Company has furnished to Parent (iia) for copies of all material agreements with Israeli human resource contractors, or with Israeli consultants, sub-contractors or freelancers; and (b) copies of material manuals and material written policies relating to the benefit employment of any individual whose principal place of employment is outside of the U.S.Israeli Employees.
Appears in 1 contract
Samples: Merger Agreement (Liveperson Inc)
Employee Matters. (a) Section 3.11 of the The Company Disclosure Schedule sets forth a true, complete and correct list of each has listed any “employee benefit plan” as defined in Section 3(3) of subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, that it maintains for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure employees on Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”5.17(a).
(b) Except as set forth on Schedule 5.17(b) or as contemplated in the Employment Agreements, (i) Each no director or officer or other employee of the Company or any Subsidiary will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting) or lapse of repurchase rights or obligations with respect to any employee benefit plan subject to ERISA or other benefit under any compensation plan or arrangement of the Company or any Subsidiary (each, an “Employee Benefit Plans has been operated Plan”) solely as a result of the transactions contemplated in this Agreement; and administered (ii) no payment made or to be made to any current or former employee or director of the Company, or any of its Affiliates by reason of the transactions contemplated hereby (whether alone or in all material respects in accordance connection with applicable lawany other event, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (iia termination of employment) each Company Benefit Plan intended to be will constitute an “qualifiedexcess parachute payment” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 280G of the Code.
(c) Neither No executive officer, to the Companies nor knowledge of the Company, is, or is now reasonably expected to be, in violation of any term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant with the Company, and, to the knowledge of the Company, the continued employment of each such executive officer does not subject the Company or any of their its Subsidiaries will, on and after to any material liability with respect to any of the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planforegoing matters.
(d) Neither The Company and its Subsidiaries, taken as a whole, are in compliance with all applicable federal, state, local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments, orders and codes respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, except where the execution failure to comply would not have a Material Adverse Effect, and no work stoppage or delivery of this Agreement labor strike against the Company or any Subsidiary is pending or, to their knowledge, threatened, nor is the consummation Company or any Subsidiary involved in or, to their knowledge, threatened with any labor dispute, grievance or litigation relating to labor matters involving any current or former employees of the transactions contemplated by this Agreement willCompany or any Subsidiary or independent contractors. There are no suits, either alone actions, disputes, claims (other than routine claims for benefits), investigations or audits pending or, to the knowledge of the Company, threatened in conjunction connection with any other eventEmployee Benefit Plan, (i) result in but excluding any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company foregoing which would not have a Material Adverse Effect. Each Employee Benefit Plan or subject to the Patient Protection and Affordable Care Act, as modified by the Health Care and Education Reconciliation Act, and related trustregulations, or (v) be considered has been operated in compliance therewith and is a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.“grandfathered health plan” as defined therein.
(e) No labor organization or group of employees Key Employee of the Companies Company (which includes all of the Company’s executive officers and Xxxx Xxxx) has advised the Company (orally or any of their Subsidiaries has made a pending demand for recognition in writing) that he or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened she intends to be brought or filed, terminate employment with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activitiesCompany, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of nor does the Companies or any of their Subsidiaries. Each of Company have a present intention to terminate the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.officer or Key Employee.
Appears in 1 contract
Samples: Securities Purchase Agreement (Irvine Sensors Corp/De/)
Employee Matters. (a) Section 3.11 With respect to each Benefit Plan, the Company has made available to Parent a true and correct copy of (i) the most recent annual report (Form 5500 and Schedules thereto) filed with the Internal Revenue Service, (ii) such Benefit Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Benefit Plan and any predecessor plans referred to therein, service provider agreements, insurance contracts, and agreements with investment managers, including all amendments thereto (iv) current summary plan descriptions of each Benefit Plan subject to ERISA and any similar descriptions of all other Benefit Plans, (v) the most recent determination of the Company Disclosure Schedule sets forth a true, complete and correct list IRS with respect to the qualified status of each “employee benefit plan” as defined in Benefit Plan that is intended to qualify under Section 3(3401(a) of the Employee Retirement Income Security Act Code (a "Qualified Plan"), and (vi) the most recent accountings with respect to any Benefit Plan funded through a trust.
(b) Neither the Company nor any of 1974its Subsidiaries maintains or is obligated to provide benefits under any life, medical or health plan which provides benefits to retirees or other terminated employees other than benefit continuation rights under the Consolidated Omnibus Budget Reconciliation of 1985, as amended (“ERISA”"COBRA").
(c) Neither the Company, whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or nor any ERISA Affiliate has at any time contributed to by any "multiemployer plan", as that term is defined in Section 4001 of ERISA.
(d) Neither the Company or nor any of its Subsidiaries or to which any Company ERISA Affiliate or any predecessor thereof maintains, has maintained at any time during the five-year period preceding the date of its Subsidiaries this Agreement, or is obligated to contributeprovide benefits under any pension plan subject to Part 3 of Title I of ERISA, Section 412 of the Code, or Title IV of ERISA.
(e) No rights have been granted to any person under the Company Stock Appreciation Rights Plan.
(f) Except as disclosed in the Disclosure Memorandum with specific reference to this Section, each Benefit Plan covers only employees and directors who are employed by, or a director of, the Company or a Subsidiary (or former employees, directors or beneficiaries with respect to which any service with the Company or any a Subsidiary), so that the transactions contemplated by this Agreement will require no spin-off of its Subsidiaries has any liability, direct assets and liabilities or indirect, contingent other division or otherwise (including any liability arising out transfer of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits rights with respect to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)plan.
(b) (ig) Each of the Company Benefit Plans is, and its administration is and has been operated and administered since inception, in all material respects in accordance with compliance with, and neither the Company nor any Subsidiary has received any claim or notice that any such Benefit Plan is not in compliance with, all applicable lawlaws, includingregulations, but not limited toorders, and prohibited transactions exemptions, including the requirements of ERISA, the Code Code, the Age Discrimination in Employment Act, the Equal Pay Act and in each case Title VII of the regulations thereunder; (ii) each Company Benefit Civil Rights Act of 1964. Each Qualified Plan intended to be “qualified” within the meaning of is qualified under Section 401(a) of the Code, has received a favorable determination letter from and, if applicable, complies with the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under requirements of Section 401(b401(k) of the Code. Each Benefit Plan which is intended to provide for the deferral of income, the reduction of salary or other compensation or to afford other tax benefits complies with the requirements of the applicable provisions of the Code or other laws required in order to provide such tax benefits.
(h) No event has not expiredoccurred, and, to the knowledge of Sellerthe Company, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and exists no condition exists that presents a risk to the Companies, their Subsidiaries or any set of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction circumstances in connection with any Benefit Plan, under which the Companies Company or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 Subsidiary, directly or 502(i) of ERISA indirectly (through any indemnification agreement or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pendingotherwise), threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in be subject to any risk of material liability under Section 409 of the Companies or any of their Subsidiaries andERISA, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1502(l) of the Code and any award thereunderERISA, in each case that is subject to Title IV of ERISA or Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 4975 of the Code.
(ci) Neither No employer securities, employer real property or other employer property is included in the Companies nor assets of any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dj) With respect to the Benefit Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company, there exists no condition or set of circumstances, other than as disclosed in the Disclosure Memorandum with specific reference to this Section, in connection with which the Company or any of its Subsidiaries could be subject to any liability that, (i) as of the date hereof is reasonably likely to result in Losses in excess of $250,000 individually or $750,000 in the aggregate, or (ii) between the date hereof and the Closing Date would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect (except liability for benefits claims and funding obligations payable in the ordinary course), under ERISA, the Code or any other applicable law. Neither the execution Company nor any of its Subsidiaries has scheduled or delivery agreed upon future increases of benefit levels (or creations of new benefits) with respect to any Benefit Plan, and no such increases or creation of benefits have been proposed, made the subject of representations to employees or requested or demanded by employees under circumstances which make it reasonable to expect that such increases will be granted.
(k) Except as set forth in the Disclosure Memorandum with specific reference to this Agreement Section, with respect to the Benefit Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued in accordance with GAAP and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP, on the consolidated financial statements of the Company and its consolidated subsidiaries, which obligations, (i) as of the date hereof could result in Losses in excess of $250,000 individually or $750,000 in the aggregate, or (ii) between the date hereof and the Closing Date would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect.
(l) Except as set forth in the Disclosure Memorandum with specific reference to this Section, and except as described in Sections 5.15 and 3.18 hereof, neither the Company nor any Subsidiary is a party to any oral or written (i) consulting agreement not terminable on 60 days or less notice, (ii) agreement with any director, executive officer or key employee of the consummation Company or any Subsidiary the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, or agreement with respect to any executive officer of the Company or any Subsidiary providing any term of employment or compensation guarantee extending for a period longer than one year, or (iii) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement will, either alone or in conjunction with the value of any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(m) The following terms shall be defined as follows: "Benefit Plan" means any of the following established by the Company or any of their Subsidiaries its Subsidiaries, or to such individuals in the aggregate, (ii) materially increase the amount or value any ERISA Affiliate of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of paymentforegoing, vestingexisting at the Closing Date or prior thereto, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on to which the right of the Companies Company or any of their its Subsidiaries to amend, merge contributes or terminate any Company Benefit Plan or related trusthas contributed, or (v) be considered a change in control for under which any purpose under any Company Benefit Plan employee, former employee or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 director of the Code Company or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies Subsidiary or any beneficiary thereof is covered, is eligible for coverage or has benefit rights: any employment, bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock appreciation rights, stock purchase, stock option, phantom stock, retirement, vacation, severance, layoff, change of their Subsidiaries has made a pending demand for recognition control, disability, sick leave, death benefit, hospitalization, day or certificationdependent care, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filedcafeteria, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, worker compensation or other material labor disputes pending employee-related insurance or threatened against other plan, arrangement or involving understanding, whether or not legally binding, whether written or oral, including, but not limited to any "employee benefit plan" within the meaning of the Companies or any Section 3(3) of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthERISA.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of Acquired Companies is not at present nor during the Company Disclosure Schedule sets forth five (5) year period preceding the Closing Date has been, a truesponsor of, complete and correct list of each “party to or obligated to contribute to any employee benefit plan” plan (as defined in Section 3(3ss 3 (3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to ERISAany employment contract, and each material employment, consulting, bonusemployee loan, incentive or compensation, profit sharing, retirement, pension, deferred compensation, vacationseverance, termination pay, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar purchase plan, programguaranteed annual income plan, fund or arrangement, payroll incentive, policy, fund, agreement or commitmentarrangement, whether written non-competition or unwrittenconsulting agreement, for the hospitalization, disability, life or other insurance plan, or other employee fringe benefit of any employeeprogram or plan, former employee, director or former director of any Company or any other plan, payroll practice, policy fund agreement or arrangement similar to or in the nature of its Subsidiaries entered intothe foregoing, maintained oral or contributed to by any Company written ("Employee Benefit Plans" or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute"Plans"), or with respect to which any Company or any of its Subsidiaries and has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits not been a party to any current, former collective bargaining agreements currently in effect or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as in effect during the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment five-year period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of preceding the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets except as set forth on Schedule 3.19 hereto. Schedule 3.19 identifies which of such Company Benefit Plan and (B) the amount of such liabilities Plans is a multiemployer plan as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA. True, correct and complete copies of all written Plans and labor agreements, and true, correct and complete written descriptions of all of the oral Plans described in Schedule 3.19 have heretofore been delivered by Acquired Companies to Buyer.
(b) Except as disclosed on Schedule 3.19 Acquired Companies does not have any unfunded liabilities, or a potential, contingent or actual multiemployer plan that has two withdrawal liabilities, on account of or more contributing sponsors at least two in connection with any of whom are not under common controlthe Plans or otherwise, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable premium payments due from Acquired Companies to such Plans have been paid in a timely manner, and any additional contributions or premium payments due on or before the Closing Date shall have been paid by the Companies or any of their Subsidiaries with that date.
(c) With respect to each Company Employee Benefit Plan (other than a Plan which is a multiemployer plan as defined in respect Section 3(37) of current or prior plan years ERISA):
(i) all disclosures to employees relating to each such Plan and required to have been paid made on or accrued in accordance with generally accepted accounting principles; before the Closing Date have been or will be duly made by that date;
(viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ixii) there is no pendinglitigation, threatened or anticipated disputed claim (other than routine claims for benefits), Proceeding, inquiry or investigation pending or Threatened with respect to each such Plan, its related trust, or any fiduciary, administrator or sponsor of such Plan;
(iii) byeach such Plan has been established, on behalf maintained, funded and administered in all respects in accordance with its governing documents, and any applicable provisions of ERISA, the Internal Revenue Code, other applicable law, and all regulations promulgated thereunder;
(iv) Acquired Companies has delivered to Buyer a true, correct and complete copy of (A) each trust or against custodial agreement and each deposit administration, group annuity, insurance or other funding contract associated with each such Plan, (B) the most recent financial information for each such Plan, (C) the most recent actuarial or valuation report relating to each such Plan, (D) if applicable, the most recent return/report of each Plan (including attachments) required to be filed with any Governmental Body, (E) the Plan document for each such Plan, (F) the summary Plan description (including summaries of material modifications, if any) for each such Plan and (G) if applicable, each Form 5310 (application for Determination Upon Termination, etc.) filed with the IRS or the Pension Benefit Guaranty Corporation (the "PBGC") with respect to any Plan in the current Plan year or any of the Company Benefit Plans five (5) Plan years preceding the current Plan year;
(v) neither any such Plan nor any fiduciary has engaged in a prohibited transaction as defined in ERISA sec 406 or any trusts related thereto IRC sec 4975 (for which could reasonably no individual or class exemption exists under ERISA sec 408 or IRC sec 4975, respectively);
(vi) all filings and reports as to each such Plan required to have been made on or before the Closing Date to the IRS, or to the United States Department of Labor or to the PBGC, have been or will be expected duly made by that date;
(vii) each such Plan which is intended to result in any material liability qualify as a tax-qualified retirement plan under IRC s 401(a) has received a favorable determination letter(s) from the IRS as to qualification of such Plan for the period from its adoption through the Closing Date, other than with respect to amendments timely made to each such Plan to comply with the requirements of the Tax Reform Act of 1986 for which an application for determination letter for each such Plan is pending with the IRS as of the Closing date; nothing has occurred, whether by action or failure to act, which has resulted in or would cause the loss of such qualification; and each trust thereunder is exempt from tax pursuant to IRC s 501(a);
(viii) no event has occurred and no condition exists relating to any such Plan that would subject Acquired Companies to any tax under IRC ss 4972 or 4979, or to any of their Subsidiaries liability under ERISA s 502; and,
(ix) to the knowledge of Sellerextent applicable, there is no existing conditioneach such Plan has been funded in accordance with its governing documents, situation ERISA and the IRC, has not experienced any accumulated funding deficiency (whether or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” not waived) and has not exceeded its full funding limitation (within the meaning of Section 409A(d)(1IRC s 412) of the Code and at any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plantime.
(d) Neither Acquired Companies has not had and does not have any Plan subject to the execution or delivery Title IV of this Agreement nor the consummation ERISA ("Pension Plan") which covers employees of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, Acquired Companies (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any person, firm or corporation which is or was under common control within the meaning of their Subsidiaries or to s 4001(b) of ERISA with Acquired Companies ("affiliate") during the period of such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.common control).
(e) No labor organization or group Acquired Companies has not had and does not contribute to any Pension Plan which is a multiemployer plan as defined in Section 3(37) of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthERISA.
(f) The With respect to any Plan which provides group health benefits to employees of Acquired Companies and their Subsidiaries do not maintain any material Company Benefit Plans is subject to the requirements of IRC s 4980B and ERISA Title I Part 6 ("COBRA"):
(i) outside of the U.S. or such group health plan has been administered in every respect in accordance with its governing documents and COBRA; and
(ii) all filings, reports, premium payments (if any) and notices as to each such group health plan required to have been made on or before the Closing Date to Government Bodies, participants and/or beneficiaries have been or will be duly made by that date.
(g) Except as disclosed on Schedule 3.19, Acquired Companies is not obligated to nor does it (directly or indirectly) provide death benefits or health care coverage to any former employees or retirees.
(h) Set forth on Schedule 3.19 is a true and correct list of all employees of Acquired Companies, together with the remuneration (for period identified on the schedule) of each such employee for the benefit of any individual whose principal place of employment is outside of the U.S.years 1995, 1996, and 1997.
Appears in 1 contract
Samples: Stock Purchase Agreement (JPM Co)
Employee Matters. (a) Section 3.11 Buyer shall offer employment, effective upon the Closing, to each of the Company Disclosure Schedule sets forth a true, complete and correct list of Transaction Employees on terms consistent with this Section 6.10(a). With respect to each “employee benefit plan” Transaction Employee who accepts Xxxxx’s offer as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974Closing Date and has presented himself or herself to Buyer as actively at work (each, as amended (a “ERISATransferred Employee”), whether Buyer shall provide to each such Transferred Employee: (i) compensation on the terms set forth in Buyer’s offer to such Transferred Employee; and (ii) employee benefits under plans, programs and arrangements that will provide benefits to such Transferred Employee that are substantially comparable in the aggregate to the employee benefits provided by Buyer to its similarly situated employees immediately prior to the Closing (excluding any defined benefit plan, equity or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar based compensation plan, program, agreement retiree health plan or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”non-qualified deferred compensation plan).
(b) Seller or its Affiliates, as applicable, shall remain solely responsible for: (i) Each the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees (including Transaction Employees) officers, directors, independent contractors or consultants (engaged in the Company Business) or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing and are payable under the terms of an applicable Benefit Plans has been operated Plan; and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of any statutory, common law, contractual or other severance, change in control, bonus, health insurance coverage under Section 401(a) 4980 of the Code, has received or other similar payment arising prior to or in connection with the transactions contemplated by this Agreement or the termination of employment or other relationship with Seller for any reason. Seller also shall remain solely responsible for all worker’s compensation claims of any current or former employees (including Transaction Employees), officers, directors, independent contractors or consultants of the Business (including the Transaction Employees) that arise out of a favorable determination letter from workplace injury or occupational illness or disease occurring while such persons were employed by Seller or providing services to the Internal Revenue ServiceBusiness. Seller shall pay, or has pending an application cause to be paid, all such amounts to the appropriate Persons as and when due.
(c) Seller agrees and acknowledges that the selling group (as defined in Treasury Regulations Section 54.4980B-9, Q&A-3(a)) of which it is a part (the “Selling Group”) will continue to offer a group health plan to employees after the Closing Date and, accordingly, that Seller and the Selling Group shall be solely responsible for such determination from providing continuation coverage under the Internal Revenue Service with respect Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) to those provisions for which the remedial amendment period under individuals who are M&A qualified beneficiaries (as defined in Treasury Regulation Section 401(b) of the Code has not expired54.4980B-9, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iiiQ&A-4(a)) with respect to each Company Benefit Plan the transactions contemplated by this Agreement (collectively, the “M&A Qualified Beneficiaries”). The Seller Parties shall indemnify, defend and hold harmless Buyer and its Affiliates for, from and against any and all claims, liabilities, losses, costs and expenses (including attorney’s fees) relating to, arising out of, or resulting from any and all COBRA obligations, liabilities and claims related to M&A Qualified Beneficiaries and all other qualified beneficiaries (as defined in Code Section 4980B(g)(1)) with respect to the Selling Group group health plans. The Seller Parties further agree and acknowledge that is subject in the event that the Selling Group ceases to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent provide any group health plan year ended to any employee prior to the date hereof, as expiration of the date hereof and as of continuation coverage period for all M&A Qualified Beneficiaries (pursuant to Treasury Regulations Section 54.4980B-9, Q&A-8(c)), then the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16Seller Parties shall provide Buyer with: (i) of ERISA did and does not exceed the then current value of assets written notice of such Company Benefit Plan cessation as far in advance of such cessation as is reasonably practicable (and, in any event, at least thirty (30) days prior to such cessation); and (Bii) the amount of all information necessary or appropriate for Buyer to offer continuation coverage to such liabilities as of the last day of the most recent plan year ended prior M&A Qualified Beneficiaries if required by Law.
(d) Upon Closing, Seller shall pay or cause to the date hereof was properly reflected on the financial statements be paid to each Transferred Employee any accrued but unused vacation or personal time off (PTO) accrued by such Transferred Employee under any vacation or PTO policy of Seller or its applicable Subsidiary previously filed with an Affiliate. Seller gives affirmative consent and has authority to transfer the SEC; employee data for the Transferred Employees described in this Agreement.
(ive) no Company Benefit Plan provides material Seller shall be responsible for all Liabilities, if any, under the WARN Act, including any obligations to provide notices, payments or benefits required under the WARN Act and any Liabilities for penalties resulting from violation of any requirement of the WARN Act, as a result of the consummation of the transactions set forth in this Agreement.
(f) Nothing in this Section 6.10, express or implied, is intended to confer any rights, benefits, remedies, obligations or liabilities under this Agreement upon any Person other than the Parties to this Agreement and their respective successors and assigns, including, without limitation, death any employee or medical benefits former employee of Seller or its Affiliates (whether or not insuredincluding the Transferred Employees), with respect to current any participant in any employee benefit plan maintained by Buyer or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries Affiliates or any dependent or beneficiary thereof. Nothing contained in this Section 6.10 shall be construed as an amendment to any Benefit Plan or any employee benefit plan maintained by Buyer or any of their respective ERISA Affiliates that has not been satisfied in fullits Affiliates. Nothing herein, express or implied, is intended to confer upon any Transferred Employee any right to continued employment for any period of time or restrict the right of Buyer or an Affiliate to terminate the employment of any Transaction Employee for any reason and no condition exists that presents a risk to the Companies, their Subsidiaries or at any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codetime.
(cg) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required Transferred Employees will cease to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals participate in the aggregate, Benefits Plans of Seller at the Closing (ii) materially increase except to the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in extent that the acceleration of the time of payment, vesting, exercisability or funding terms of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trustapplicable law provide for continued participation following termination of employment), or (v) be considered a change in control for Buyer is not assuming any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes Liability under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certificationBenefit Plans, and there the Benefits Plans are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthnot Purchased Assets nor Assumed Liabilities.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of Except as set forth on Schedule 3.14(a), (i) neither the Company Disclosure Schedule sets forth a truenor any of its Subsidiaries has entered into any collective bargaining agreement with respect to its employees, complete and correct list of each “employee benefit plan” as defined in Section 3(3(ii) of there is no labor strike, labor dispute, or work stoppage or lockout pending or, to Company's Knowledge, threatened against or affecting the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoand since January 1, maintained 2005 there has been no such action, (iii) to Company's Knowledge, no union organization campaign is in progress with respect to any of the employees of the Company or contributed its Subsidiaries, and (iv) there is no unfair labor practice, charge or complaint pending or, to by any Company's Knowledge, threatened against the Company or any of its Subsidiaries or to which any Subsidiaries. Neither the Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or nor any of its Subsidiaries has engaged in any liabilityplant closing or employee layoff activities since January 1, direct 2003 that would violate or indirectgive rise to an obligation to provide any notice required pursuant to the Worker Adjustment Retraining and Notification Act of 1988, contingent or otherwise (including any liability arising out of an indemnificationas amended, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries similar state or to any beneficiary local plant closing or dependent thereof (such plansmass layoff statute, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) rule or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)regulation.
(b) (i) Each Except as set forth on Schedule 3.14(b), to Company's Knowledge, the activities of the employees of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any business of the Company Benefit Plans and its Subsidiaries do not conflict with or any trusts related thereto which could reasonably be expected to result in any material liability constitute a breach of the Companies terms of any employment agreement, intellectual property disclosure agreement, restrictive covenant or any of their Subsidiaries and, to the knowledge of Seller, there other agreement under which such employee is no existing condition, situation obligated or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Codebound, and neither the Company nor any Subsidiary has received (B)(1in the past two years) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeany written allegation to such effect.
(c) Neither the Companies nor any of their Subsidiaries willExcept as set forth on Schedule 3.14(c), on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies Company and its Subsidiaries is are and have been since January 1, 2005 in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment relating to labor or labor relations and employment practices, terms and conditions of employmentconditions, wages and hours and occupational safety and health.
(f) The Companies and their Subsidiaries do not maintain including any material Company Benefit Plans provisions thereof relating to (i) outside wages, hours, bonuses, commissions, termination pay, vacation pay, sick pay and the payment and/or accrual of the U.S. or same and all insurance and all other costs and expenses applicable thereto, (ii) unlawful, wrongful, or retaliatory or discriminatory employment or labor practices, (iii) occupational health and safety standards and (iv) immigration, workers' compensation, disability, unemployment compensation, whistleblower laws, and other employment laws and (B) all employees are authorized to work in the United States and a Form I-9 has been completed properly and retained with respect to each employee, except in the case of (B) where failure to comply has not had and would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary is liable for the benefit of any individual whose principal place of employment is outside material arrearage, or any material costs or penalties for failure to comply with any of the U.S.foregoing.
Appears in 1 contract
Samples: Merger Agreement (Welsh Carson Anderson & Stowe Ix Lp)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth SCHEDULE 2.19 contains a true, complete and correct accurate list of each “employee benefit plan” (and, as defined in Section 3(3indicated below, description) of (i) the Employee Retirement Income Security Act names and titles of 1974all consultants, as amended (“ERISA”)independent contractors, whether full-time, part-time, temporary, contract, leased or not subject to ERISA, and each material employment, consulting, bonus, incentive casual employees employed by or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, who provided services for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intosubsidiaries (collectively, maintained "Company Employees"), together with their status and location of their employment; (ii) the date each Company Employee was hired or contributed to by any retained; (iii) a list of all written employment, consulting or service contracts or offer letters between Company or any of its Subsidiaries or subsidiaries and the Company Employees; (iv) the rate of annual remuneration of each Company Employee at the date hereof, any bonuses paid since the end of the last completed financial year and all other bonuses, incentive schemes and benefits to which such Company Employee is or may be entitled; (v) the annual accrual rate and the total current accrued and unused amount of vacation or paid time off for each Company Employee as of the date hereof; (vi) the names of all inactive Company Employees, the reason they are inactive Company Employees, whether they are expected to return to work, and if so when, and the nature of any benefits to which such inactive Company Employees are entitled from Company or any of its Subsidiaries is obligated to contribute, subsidiaries; (vii) any employee handbook or with respect to which any Company personnel policies or any procedures manual in effect that governs the terms and conditions or privileges of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 employment of the Company Disclosure Schedule identifies each Employees; and (viii) particulars of all other material terms and conditions of employment or engagement of the Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including Employees and the LFG Deferred Compensation Plans) positions, title or the Companies or their respective Subsidiaries shall continue to maintain or sponsor classification held by them (collectively, the “Assumed Plans”"Company Employee Matters").
(b) (i) Each Company has provided or made available to Parent correct and complete copies of all documents including but not limited to all agreements, correspondence, files and policies, relating to the Company Benefit Plans Employee Matters.
(c) Company and each of its subsidiaries are in compliance in all respects with all currently applicable laws and regulations respecting terms and conditions of employment, including without limitation applicant and employee background checking, immigration laws, verification of employment eligibility, document retention and record keeping, discrimination in employment, wages and hours, leaves of absence (including, as legally applicable, the Family and Medical Leave Act, California Family Rights Act, and Pregnancy Disability Law), classification of workers as employees and independent contractors, classification of workers as exempt or nonexempt employees, and occupational safety and health and employment practices, and are not engaged in any unfair labor practice. Company has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended withheld all amounts required by law or by agreement to be “qualified” within withheld from the meaning wages, salaries, and other payments to employees; and is not liable for any arrears of Section 401(a) wages or any taxes or any penalty for failure to comply with any of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there foregoing. Company is not liable for any reason why payment to any such determination letter should be revoked; (iii) with respect trust or other fund or to each Company Benefit Plan that is subject to Title IV any governmental or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured)administrative authority, with respect to current unemployment compensation benefits, social security or former employees other benefits or directors obligations for Company Employees (other than routine payments to be made in the normal course of any business and consistent with past practice). There are no pending claims, or claims reasonably expected or, to Company's knowledge, threatened, against Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries subsidiaries under any workers compensation plan or policy or long-term or short-term disability plan or policy. Neither Company nor any of its subsidiaries has any obligations under COBRA with respect to any former or current Company Employees or qualifying beneficiaries thereunder. To the knowledge of Company and its subsidiaries, there are no controversies, including claims, complaints, charges, investigations, or proceedings pending or, to Company's knowledge, reasonably expected or threatened between Company or any of its subsidiaries, on the one hand, and any of their respective ERISA Affiliates that has not been satisfied in fullCompany Employees, and no condition exists that presents a risk to on the Companiesother hand, their Subsidiaries or including without limitation any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) byactual or alleged harassment or discrimination based on race, on behalf national origin, age, sex, sexual orientation, religion, disability, or similar tortuous conduct, breach of contract, wrongful termination, defamation, intentional or against any negligent infliction of the Company Benefit Plans emotional distress, interference with contract or any trusts related thereto interference with actual or prospective economic disadvantage, which could controversies have or would reasonably be expected to result in an action, suit, proceeding, claim, arbitration, audit or investigation before any material liability of the Companies agency, court or any of their Subsidiaries andtribunal, to the knowledge of Seller, there is no existing condition, situation foreign or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plandomestic.
(d) Neither the execution or delivery Company nor any of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, its subsidiaries is a party to any director, employee collective bargaining agreement or independent contractor of the Companies other labor union contract nor does Company or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value its subsidiaries know of any benefit activities or compensation otherwise payable or required proceedings of any labor union to be provided to organize any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Employees.
(e) No labor organization dispute, walk out, strike, slowdown, hand billing, picketing, work stoppage (sympathetic or group otherwise), or other "concerted action" involving the Company Employees has occurred, is in progress or has been, to the knowledge of employees Company or its subsidiaries, threatened.
(f) Company and its subsidiaries have each provided all current and former Company Employees with all wages, benefits, relocation benefits, stock options, bonuses and incentives, and all other compensation, remuneration and benefits that became due and payable through the date hereof and has reimbursed all current and former Company Employees for all expenses incurred and due such individual.
(g) In the last five (5) years, no citation has been issued by the Occupational Safety and Health Administration ("OSHA") or by a state or provincial occupational safety and health board or agency against Company or its subsidiaries and no notice of the Companies contest, claim, complaint, charge, investigation or other administrative enforcement proceeding involving Company or any of their Subsidiaries its subsidiaries has made a been filed or is pending demand for recognition or, to the knowledge of Company or certificationits subsidiaries, threatened against Company or its subsidiaries under OSHA or any provincial occupational safety and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board health board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and employment practices, terms and conditions of employment, wages and hours and law relating to occupational safety and health.
(fh) The Companies and their Subsidiaries do not maintain Neither Company nor any material Company Benefit Plans (i) outside of its subsidiaries has taken any action that would constitute a "mass layoff," "mass termination" or "plant closing" within the U.S. meaning of WARN or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.similar state or provincial law or that would otherwise trigger notice requirements or liability under any federal, local, state or foreign plant closing notice or collective dismissal law.
Appears in 1 contract
Samples: Merger Agreement (SSP Solutions Inc)
Employee Matters. (a) Section 3.11 None of the Company Disclosure Schedule sets forth a true, complete and correct list Parent or any of each its Subsidiaries has any employees. None of Parent or any of its Subsidiaries has any liability under any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act ERISA, any “multiemployer plan” (as defined in Section 3(37) of 1974, as amended (“ERISA”), any “multiple employer plan” (within the meaning of Section 413 of the Code), any “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), any arrangement that is or was subject to Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, or any incentive, deferred compensation, paid-time-off, equity-based, phantom equity, severance, separation, termination, retention, change-of-control, pension, profit-sharing, retirement, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, medical, dental, vision, welfare, accident, disability, workmen’s compensation or other insurance, collective bargaining, material fringe benefit, or other similar plan, program, agreement, practice, policy, arrangement or commitment that was at any time maintained or contributed to, or required to be maintained or contributed to by the Parent, any of its Subsidiaries or any Person that, together with Parent or any of its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code, whether written or oral, and whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, under any employment agreement or commitmentindependent contractor agreement for substantial personal services (collectively, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Employee Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant There are no investigations pending or, to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) Parent’s knowledge, threatened in writing by any Governmental Entity or the Companies or their respective Subsidiaries shall continue other claims pending or, to maintain or sponsor (collectivelyParent’s knowledge, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered threatened in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service writing by any Person with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Employee Benefit Plan that is subject maintained or contributed to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller at any time by Parent or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodeSubsidiaries.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (ai) Section 3.11 All incentive bonus, deferred compensation, pension, profit-sharing, savings, employee stock ownership, stock purchase, restricted stock, stock appreciation rights, and stock option and stock-based plans, employment and severance contracts, and all benefit plans, contracts, policies or arrangements (regardless of the Company Disclosure Schedule sets forth a truewhether they are funded or unfunded, complete foreign or domestic) covering current employees (and correct list other service providers) or former employees of each Centennial Bank, including, but not limited to, “employee benefit planplans” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether and also, those for which Centennial Bank has or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of may have any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirectactual, contingent or otherwise controlled group liability (including any liability arising out the “Plans”), are listed in Section 3.02(k) of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits the Bank Disclosure Schedule. Centennial Bank has provided to any current, former or future employee, officer or director Acquiror true and complete copies of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (all such plans, programscontracts and arrangements, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISAtrust agreements and insurance contracts, if any, forming a part thereof, and all amendments thereto, the Code past three years’ Forms 5500 and actuarial reports, and IRS determination letters, all of which are listed in each case Section 3.02(k) of the regulations thereunder; Bank Disclosure Schedule.
(ii) each Company Benefit All Plans are and have been maintained in compliance with applicable Law and the terms of such Plans in all material respects. Each Plan intended to be which is an “qualifiedemployee pension benefit plan” within the meaning of Section 3(2) of ERISA (“Pension Plan”) and which is intended to be qualified under Section 401(a) of the Code, Code is a tax-qualified plan and has received a an updated favorable determination letter from the Internal Revenue ServiceService covering EGTRRA, and Centennial Bank is not aware of any circumstances likely to result in revocation of any such favorable determination letter or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the plan. There is no pending or threatened litigation relating to the Plans. Centennial Bank has pending an application for such determination from the Internal Revenue Service not engaged in a transaction with respect to those provisions for which any Plan that, assuming the remedial amendment taxable period under of such transaction expired as of the date hereof, could subject Centennial Bank to a tax or penalty imposed by either Section 401(b) 4975 of the Code has not expired, and, to the knowledge or Section 502(i) of Seller, there is not any reason why any such determination letter should be revoked; ERISA.
(iii) No liability under ERISA has been or may be incurred by Centennial Bank with respect to each Company Benefit Plan that any ongoing, frozen or terminated “single-employer plan”, within the meaning of Section 4001(a)(15) of ERISA or Section 414 of the Code, currently or formerly maintained by Centennial Bank, or the single-employer plan of any entity which is considered one employer with Centennial Bank under Section 4001 of ERISA or Section 414 of the Code (an “ERISA Affiliate”). Centennial Bank does not and has never sponsored or maintained any plan subject to Title IV or Section 302 of ERISA. Any and all liabilities relating to any and all plans subject to Title IV of ERISA sponsored or Section 412 maintained by any ERISA Affiliate have been fully satisfied and Centennial Bank has no actual, contingent, or 4971 controlled group liability with respect to any such plan. All assets of the CodeLandAmerica Cash Balance Plan have been fully distributed and neither Centennial Bank nor any ERISA Affiliate has any continuing liability relating to such plan. Neither Centennial Bank nor any ERISA Affiliate has at any time been obligated to contribute to a “multiemployer plan”, within the meaning of Section 3(37) of ERISA. No notice of a “reportable event”, within the meaning of Section 4043 of ERISA for which the thirty (A30) day reporting requirement has not been waived, has been required to be filed for any Pension Plan or by any ERISA Affiliate within the twelve (12) month period ending on the date hereof.
(iv) All contributions required to be made under the terms of any Plan have been timely made when due. Neither any Pension Plan nor a single-employer plan of an ERISA Affiliate is in “at risk” status within the meaning of Section 303 of ERISA.
(v) Under each Pension Plan which is a single-employer plan, as of the last day of the most recent plan year that ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” ”, within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in the Plan’s most recent actuarial valuation), did and does not exceed the then current value of the assets of such Company Benefit Plan Plan, and (B) there has been no material change in the amount financial condition of such liabilities as of Plan since the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements year. No Plan of Seller or its applicable Subsidiary previously filed with the SEC; Centennial Bank is a multiple-employer plan.
(ivvi) Centennial Bank has no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement obligations for retiree health and life benefits under any “employee pension plan” (as Plan or otherwise. There are no restrictions on the rights of Centennial Bank to amend or terminate any such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of Plan without incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claimthereunder. Each Company Benefit No Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and health or welfare benefit Plan is self-funded. Neither Centennial Bank nor any award thereunder, in each case ERISA Affiliate has any commitment or intent to amend any existing Plan or create any new arrangement that would be a Plan. Centennial Bank is not a party to any arrangement subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dvii) Neither the execution or delivery shareholder approval of this Agreement nor the consummation of the transactions contemplated by this Agreement will, hereby or thereby (either alone or in conjunction together with any other event) will (A) entitle any employee of Centennial Bank to severance pay or any increase in severance pay upon any termination of employment prior to or after the date hereof, (iB) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any of the Plans, (C) limit or restrict the right of Centennial Bank, to merge, amend or terminate any of the Plans, or (D) cause Centennial Bank to record additional compensation expense on its respective income statement with respect to any outstanding stock option or other equity-based award. Neither the execution or shareholder approval of this Agreement nor the consummation of the transactions contemplated hereby or thereby (either alone or together with any other event) may result in any material payment or benefit becoming due or payable, or required to payments which would not be provided, to any director, employee or independent contractor deductible under Section 280G of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthCode.
(fviii) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (iSection 3.02(k) outside of the U.S. or (ii) Bank Disclosure Schedule contains a true and complete list of all full-time employees of Centennial Bank, together with current salary and years of service for the benefit of any individual whose principal place of employment is outside of the U.S.each such employee.
Appears in 1 contract
Employee Matters. Section 2.17 of the Schedule of Exceptions sets forth an accurate list of any material compensation or benefit plan or agreement (including any employee benefit plan, program, policy, agreement or contract providing benefits to any current or former employee, officer or director of it or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by it or any of its Subsidiaries or to which it or any of its Subsidiaries contributes or is obligated to contribute (other than government-based plans), including any “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA), all employment or severance agreements, and any bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, change of control or fringe benefit plans, programs or policies (any of the foregoing a “Benefit Plan”) of the Company and its Subsidiaries. There do not now exist, and to the Company’s knowledge, there are no existing circumstances that could reasonably be expected to result in, any liabilities (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) under Title IV of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder (“ERISA”), whether (b) under Section 302 of ERISA, (c) under Sections 412 and 4971 of the Code, (d) for violation of the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or not subject to the group health requirements of Sections 9801 et seq. of the Code and Sections 701 et seq. of ERISA, and each material employment, consulting, bonus, incentive (e) under corresponding or deferred compensation, vacation, stock option similar provisions of foreign laws or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for regulations (any such liability a “Controlled Group Liability”) to the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoexcept for those that, maintained individually or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required would not be reasonably likely to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation have a Material Adverse Effect on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Company. No Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.maintained
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Pluristem Life Systems Inc)
Employee Matters. Section 2.17 of the Schedule of Exceptions sets forth an accurate list of any material compensation or benefit plan or agreement (including any employee benefit plan, program, policy, agreement or contract providing benefits to any current or former employee, officer or director of it or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by it or any of its Subsidiaries or to which it or any of its Subsidiaries contributes or is obligated to contribute (other than government-based plans), including any "employee welfare benefit plan" within the meaning of Section 3(1) of ERISA, any "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA), all employment or severance agreements, and any bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, change of control or fringe benefit plans, programs or policies (any of the foregoing a "Benefit Plan") of the Company and its Subsidiaries. There do not now exist, and to the Company's knowledge, there are no existing circumstances that could reasonably be expected to result in, any liabilities (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) under Title IV of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder (“"ERISA”"), whether (b) under Section 302 of ERISA, (c) under Sections 412 and 4971 of the Code, (d) for violation of the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or not subject to the group health requirements of Sections 9801 et seq. of the Code and Sections 701 et seq. of ERISA, and each material employment, consulting, bonus, incentive (e) under corresponding or deferred compensation, vacation, stock option similar provisions of foreign laws or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for regulations (any such liability a "Controlled Group Liability") to the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoexcept for those that, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect on the Company. No Benefit Plan maintained or contributed to by any the Company or any of its Subsidiaries or to which any the Company or any of its Subsidiaries is obligated required to contributecontribute (any such plan a "Company's Benefit Plan") is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA. Except as is not reasonably likely, individually or with respect in the aggregate, to which any Company or any of its Subsidiaries has any liabilityhave a Material Adverse Effect on the Company, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreementA) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 each of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Company's Benefit Plans has been operated and administered in all material respects in accordance with applicable lawLaw and administrative rules and regulations of any Governmental Authority, including, but not limited to, ERISA, the Code ERISA and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) there are no pending or threatened claims (other than claims for benefits in the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insuredordinary course), lawsuits or arbitrations that have been asserted or instituted, against the Company's Benefit Plans, any fiduciaries thereof with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk duties to the Companies, their Subsidiaries Company's Benefit Plans or any the assets of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company trusts under any of the Company's Benefit Plans or any trusts related thereto which that could reasonably be expected to result in any material liability of the Companies Company or any of their its Subsidiaries andto the Pension Benefit Guaranty Corporation, the U.S. Department of the Treasury, the U.S. Department of Labor or any similar non-U.S. Governmental Entities, any Company's Benefit Plan, any participant in a the Company's Benefit Plan, or any other party. As of the date hereof, neither the Company nor any of its Subsidiaries is a party to any material collective bargaining or other labor union contract applicable to individuals employed by the Company' or any of its Subsidiaries, and no such collective bargaining agreement or other labor union contract is being negotiated by the Company or any of its Subsidiaries. Except as is not reasonably likely to have a Material Adverse Effect on the Company, (A) there is no labor dispute, strike, slowdown or work stoppage against the Company or any of its Subsidiaries pending or, to the knowledge of SellerCompany's knowledge, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each threatened against the Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their its Subsidiaries and (B) no unfair labor practice or labor charge or complaint has occurred with respect to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies Company or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their its Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Pluristem Life Systems Inc)
Employee Matters. (a) Section 3.11 Purchaser agrees that for a period of 6 months, each Continuing Employee shall be provided such employment on terms and conditions substantially as favorable as provided by the Company Disclosure Schedule sets immediately prior to the Closing with respect to base salary and benefits set forth a truein the U.S. Benefit Plans, complete Foreign Benefit Plans, the Annual Incentive Plan, the Project Incentive Compensation Plan (Project Managers) and correct list the Project Incentive Compensation Plan (Vice Presidents).
(b) Shareholder shall assume and retain each U.S. Benefit Plan, and none of each Holdings, Purchaser, the Company, its Subsidiaries, or any of their respective Affiliates shall have any obligation or liability at any time relating to or arising under or in connection with, any U.S. Benefit Plan or any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether ) or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or any other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement program or commitment, whether written or unwritten, for the benefit arrangement of any employeekind at any time maintained, former employee, director sponsored or former director of any Company contributed or required to be contributed to by Shareholder or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise Affiliates (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”CTH LLC). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any ERISA Affiliate, or with respect to which Shareholder or any of their respective its Affiliates (including CTH LLC), the Company, any of its Subsidiaries or any ERISA Affiliate has any liability or potential liability, including for the avoidance of doubt (i) the responsibility for satisfying the continuation coverage requirements of COBRA for all employees or former employees or other service providers (and any dependents or beneficiaries thereof) of Shareholder or any of its Affiliates that has not been satisfied in full(including CTH LLC), and no condition exists that presents a risk to the CompaniesCompany, their its Subsidiaries or any of their respective affiliates, or any ERISA Affiliates Affiliate who are receiving COBRA continuation coverage as of incurring the Closing Date or who are entitled to elect such coverage on account of a qualifying event occurring on or before the Closing Date, and (ii) the sponsorship of and all liabilities and obligations of any such liability; (vikind arising at any time under the 401(k) neither the Companies nor any of their Subsidiaries contributes on behalf of plan covering employees of the Companies or any of their Company and its Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodeClosing.
(c) Neither All vacation, sickness, leave, holiday and personal days accrued by the Companies nor any of their Subsidiaries will, on and after Continuing Employees prior to the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For Closing shall be honored by Purchaser and/or the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed PlanCompany.
(d) Neither the execution or delivery of this Agreement nor the consummation Effective as of the transactions contemplated by this Agreement willClosing Date, either alone the Company or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered Purchaser shall make available a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes cafeteria plan described under Section 4999 125 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside all Continuing Employees (“Purchaser’s Cafeteria Plan”) who were eligible to participate in such a plan sponsored by the Company and assumed by Shareholder as indicated above (“Shareholder’s Cafeteria Plan”). Purchaser’s Cafeteria Plan shall include medical expense reimbursement accounts and dependent care assistance accounts (as described under Sections 125 or 129 of the U.S.Code) (the “Flex Accounts”). As soon as administratively feasible after the Closing Date, Shareholder shall transfer to Purchaser’s Cafeteria Plans the account balance of any Flex Accounts maintained by Continuing Employees in Shareholder’s Cafeteria Plan.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth 3.18(a) contains a true, current and complete and correct list of each “employee benefit benefit, employment, personal services, collective bargaining, compensation, incentive, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, time-off, perquisite and other similar agreement, plan” as defined , policy and other arrangement (and any amendments thereto), (i) currently in Section 3(3effect and covering one or more current or former employees of, or current or former independent contractors with respect to, Seller or any of its affiliates, who principally works (or worked), or provides (or provided) services, for or with respect to the Business (each, a "Participant"), and maintained by Seller or any of its affiliates, or (ii) with respect to which Seller or any of its affiliates has or could have any liability (each, a "Benefit Plan").
(b) Each Benefit Plan complies with and has at all times been administered in all material respects, in accordance with all applicable laws, including the Employee Retirement Income Security Act of 1974, as amended amended, and the regulations promulgated thereunder (“"ERISA”"), whether and, to obtain taxation advantages, the Code and the regulations promulgated thereunder. All benefits, contributions and premiums relating to each Benefit Plan have been timely paid or not subject to ERISAmade in all material respects, in accordance with the terms of such Benefit Plan and each material employmentthe terms of all applicable laws.
(c) Except as disclosed in Schedule 3.18(c) or, consultingfor purposes of clause (ii)(D)(I) below, bonusSchedule 3.21(d), incentive (i) no Benefit Plan (A) provides for defined benefit pension benefits, or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior provides any benefits (other than on a self-pay basis or pursuant to the date hereof was properly reflected on the financial statements terms of Seller or its applicable Subsidiary previously filed with the SEC; (ivan individual agreement) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other following termination of serviceservice or employment, other than (AC) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension is a "multiemployer plan” " (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) ), or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of "multiple employer welfare arrangement" (as defined in Section 4063 3(40) of ERISA; ), (viiD) all covers any Participant who resides or works outside the United States, (E) is a collective bargaining or similar agreement, or (F) has been administered in a manner contrary to its terms in any material contributions or other material amounts payable respect, and (ii) no Participant (A) is represented by the Companies any union, (B) is currently receiving any disability benefits, (C) has received any loan from Seller or any of their Subsidiaries its affiliates, not including any loans under the salaried and hourly 401(k) plans of Seller secured by such Participants' interest in such plans, (D) has a right (I) as of the date of Schedule 3.21(d) to take more than four weeks of vacation (exclusive of "block" week) per year, or (II) to receive from Seller, or any of its affiliates a base annual salary along with any guaranteed bonus, or target or discretionary bonus (with respect to each Company Benefit Plan any single year) in respect excess of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; $125,000, (viiiE) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies received from Seller or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against its affiliates any of the Company Benefit Plans discretionary severance or any trusts related thereto which severance under any formal or informal policy or practice, (F) has received or could reasonably be expected to result in receive any material liability of the Companies payment or benefit from Seller, or any of their Subsidiaries andits affiliates which would not be deductible to such entity, or (G) is, or at any time will become, entitled to the knowledge of Sellerany payment, there is no existing conditionbenefit or right, situation or set of circumstances which could reasonably be expected to any increased and/or accelerated payment, benefit or right, as a result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (AI) Section 409A such Participant's termination of the Codeemployment with, and or services to, Seller or any of its affiliates, or (B)(1II) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor or the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthhereby.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sappi LTD)
Employee Matters. (ai) Section 3.11 Neither Meritus nor its Subsidiaries has any labor contracts or collective bargaining agreements with respect to any persons employed by or otherwise performing services for Meritus or its Subsidiaries. Neither Meritus nor its Subsidiaries has engaged in any unfair labor practice. As of the date hereof, there is no unfair labor practice complaint pending, or to the knowledge of the executive officers of Meritus threatened, against Meritus or any of its Subsidiaries. There is no labor strike, dispute, slowdown, or stoppage pending or to the knowledge of the executive officers of Meritus threatened, against Meritus or its Subsidiaries, and neither Meritus nor its Subsidiaries has experienced any primary work stoppage or labor difficulty involving its employees during the last three years.
(ii) Set forth in SECTION 5.1(h) of the Company Disclosure Schedule sets forth Letter is a true, true and complete and correct list of each “bonus, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, employment, termination, severance, compensation, medical, health, welfare, fringe benefits or other plan, agreement, policy or arrangement which Meritus or any of its Subsidiaries maintains, or as to which Meritus or any of its Subsidiaries is or will be required to make any payment for the benefit plan” as defined in Section 3(3of any employee, director, former employee or former director of Meritus and its Subsidiaries (the "COMPENSATION AND BENEFIT PLANS"). Meritus has delivered to DSI, and SECTION 5.1(h) of the Company Disclosure Letter lists with respect to each Compensation and Benefit Plan correct and complete copies, where applicable, of (i) all plan documents and amendments thereto, trust agreements and amendments thereto and insurance and annuity contracts and policies; (ii) the current summary plan description; (iii) the Annual Reports (Form 5500 series) and accompanying schedules, as filed, for the most recently completed two plan years for which such reports have been filed; (iv) the financial statements for the most recently completed two plan years for which statements have been prepared; (v) the most recent determination letter issued by the Internal Revenue Service (the "IRS") and the application submitted with respect to such letter; and (vi) all correspondence with the IRS or Department of Labor concerning any pending controversy. Any "change of control" or similar provisions contained in any Compensation and Benefit Plan are specifically identified in SECTION 5.1(H) of the Company Disclosure Letter.
(iii) All Compensation and Benefit Plans have been administered in all material respects in accordance with their terms and are in compliance in all material respects with all applicable laws, including to the extent possible, the Code and the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”"). Section 3.11 of the Company Disclosure Schedule identifies each Company Each Compensation and Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "PENSION PLAN") and that is intended to be qualified under Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue ServiceIRS, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) and Meritus is not aware as of the Code has date hereof of any circumstances likely to result in revocation of any such favorable determination letter or of any circumstance indicating that any such plan is not expiredso qualified in operation. As of the date hereof, andthere is no pending or, to the knowledge of Sellerthe executive officers of Meritus, there is not material threatened litigation, claim or audit by any reason why any such determination letter should be revoked; (iii) with respect Person relating to each Company the Compensation and Benefit Plan that is subject to Title IV or Plans. To the knowledge of the executive officers of Meritus, no prohibited transaction described in Section 302 406 of ERISA or Section 412 or 4971 4975 of the CodeCode has occurred which would be expected to result in material liability to Meritus or its Subsidiaries, (A) as assuming that, for purposes of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Datedetermining materiality, the actuarially determined present value of all “benefit liabilities” "taxable period" within the meaning of Section 4001(a)(16) 4975 of ERISA did and does not exceed the then current value of assets of Code with respect to such Company Benefit Plan and (B) the amount of such liabilities prohibited transaction had expired as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; hereof.
(iv) As of the date hereof, no Company Benefit Plan provides material benefits, including, without limitation, death liability under Subtitle C or medical benefits (whether D of Title IV of ERISA has been or not insured), is expected to be incurred by Meritus or any Subsidiary with respect to current any ongoing, frozen or former employees or directors terminated "single-employer plan", within the meaning of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(24001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is considered one employer with Meritus under Section 4001 of ERISA or Section 414 of the Code (an "ERISA AFFILIATE"); (v) . None of Meritus, its Subsidiaries and their ERISA Affiliates have contributed, or been obligated to contribute, to a multiemployer plan under Subtitle E of Title IV of ERISA at any time, and no Controlled Group Liability liability has been or is expected to be incurred by Meritus or any CompanySubsidiary with respect to any such plan. None of Meritus, any of its Subsidiaries or any ERISA Affiliate contributes to or maintains a Pension Plan subject to Title IV of their respective ERISA Affiliates that or has not been satisfied in full, and no condition exists that presents a risk contributed to or maintained any such plan at any time during the six-year period prior to the Companiesdate hereof.
(v) All contributions required to be made under the terms of any Compensation and Benefit Plan as of the date hereof, their Subsidiaries have been timely made or any of their respective ERISA Affiliates of incurring any such liability; have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company Reports prior to the date hereof.
(vi) neither the Companies Neither Meritus nor its Subsidiaries have any obligations for retiree health and life benefits under any Compensation and Benefit Plan, except as required under Part 6 of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) Title I of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; .
(vii) all material contributions Except as contemplated by this Agreement or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan disclosed in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viiiSECTION 5.1(H) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries andDisclosure Letter, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the Merger and the other transactions contemplated by this Agreement willwill not (x) entitle any employees of Meritus or its Subsidiaries to severance pay, either alone (y) accelerate the time of payment or in conjunction with vesting or trigger any payment of compensation or benefits under, increase the amount payable or trigger any other eventobligation pursuant to, any of the Compensation and Benefit Plans or (iz) result in any material payment breach or benefit becoming due or payableviolation of, or required to be provideda default under, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies Compensation and its Subsidiaries is in compliance in all material respects 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 healthBenefit Plans.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Merger Agreement (Dsi Toys Inc)
Employee Matters. (a) Section 3.11 4.8 of the Company Disclosure Schedule sets forth a true, true and complete and correct list of each material “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISAand any other material pension, and each material retirement, incentive, bonus, employment, consulting, bonuschange in control, incentive or retention, severance, deferred compensation, vacationcafeteria, medical, disability, stock option purchase or other equity-basedequity based compensation plan, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar planpolicy, program, agreement practice, agreement, understanding or commitment, arrangement (whether written or unwritten, for the benefit of oral) providing compensation or other benefits to any employee, former employee, director current or former director director, officer, employee or consultant of any the Company or any of its Subsidiaries entered intoSubsidiary (or to any dependent or beneficiary thereof), maintained which is maintained, sponsored or contributed to by any the Company or any of its Subsidiaries Subsidiary, or to under which any the Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries Subsidiary has any material obligation or liability, direct whether actual or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the each a “Company Benefit PlansPlan”). Section 3.11 The Company has made available to Parent copies of all material documents evidencing the Company Disclosure Schedule identifies terms of each Company Benefit Plan that Buyers shall assume pursuant Plan, including all amendments thereto and all related trust documents, to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)extent applicable.
(b) (i) Each of the Company Benefit Plans Plan has been operated and administered in all material respects in accordance with its terms and all applicable lawLaws, includingincluding ERISA and the Code. With respect to the Company Benefit Plans, but not limited no Event has occurred and, to the knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company could be subject to any material liability (other than for routine benefit claims and appeals) under the terms of, or with respect to, such Company Benefit Plans, ERISA, the Code and in each case the regulations thereunder; or any other Law applicable to such Company Benefit Plans.
(iic) each (i) Each Company Benefit Plan which is intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code, Code has either received a favorable determination letter from the Internal Revenue Service, IRS as to its qualified status or has pending may rely upon an application opinion letter for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, a prototype plan and, to the knowledge Company’s knowledge, no Event has occurred that would reasonably be expected to result in a disqualification of Sellerany such Company Benefit Plan, (ii) to the Company’s knowledge, there is not any reason why any such determination letter should be revoked; has been no prohibited transaction (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) 406 of ERISA did or Section 4975 of the Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan that would reasonably be expected to result in material liability to the Company, and does not exceed (iii) no suit, administrative proceeding, Action or other litigation has been brought, or to the then current value knowledge of assets of the Company, is threatened against or with respect to any such Company Benefit Plan Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than routine benefit claims and appeals).
(Bd) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no No Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee is a multiemployer pension plan” plan (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or other pension plan subject to Title IV of ERISA. The Company has no liability under Title IV of ERISA, and no condition exists that presents a plan that has two material risk to the Company of incurring or more contributing sponsors at least two being subject (whether primarily, jointly or secondarily) to a material liability thereunder. Neither the Company nor any ERISA Affiliate would incur aggregate withdrawal liability under Title IV of whom are not under common control, ERISA in excess of $1.5 million if the Company and each ERISA Affiliate were to completely withdraw (within the meaning contemplation of Section 4063 4203 of ERISA; ) from each multiemployer plan (viias defined in Section 3(37) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries ERISA) with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies Company or any of their Subsidiaries reasonably could be subject ERISA Affiliate has an obligation to either a material civil penalty assessed pursuant contribute, such liability to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.be
Appears in 1 contract
Samples: Merger Agreement (X Rite Inc)
Employee Matters. (a) Section 3.11 3.17(a) of the Company Disclosure Schedule sets forth a truelists all Plans. For purposes of this Agreement, complete and correct list of each “Plans” means all employee benefit plan” plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, all bonus, incentive stock option, stock purchase, restricted stock, phantom stock, profits interest or other forms of equity-based compensation, incentive, profit sharing, savings, retirement, pension, deferred compensation, vacationretiree medical or life insurance, stock option or other equity-basedsupplemental retirement, severance, terminationexecutive compensation, retentiontax gross up, change of controlsalary continuation, profit-sharingflexible benefit, vacation, sick leave, disability, death benefit, group insurance, hospitalization, medical, dental, life, welfare, employee loan, educational assistance or material fringe benefit or other similar planmaterial benefit plans, programprograms, agreement policies or commitmentarrangements, and all employment, termination, severance change-in-control, transaction bonus, retention or other employment or compensation contracts or agreements (including employment offer letters), whether written or unwrittenoral, for the benefit of any employeequalified or nonqualified, former employeefunded or unfunded, director or former director of any Company or any of its Subsidiaries entered intowhich are sponsored, maintained or contributed to by any Acquired Company or any of its Subsidiaries or to which any Acquired Company or any of its Subsidiaries is obligated to contribute, or with respect to under which any Acquired Company has any actual or contingent Liability, including any ERISA Affiliate Liability, which benefits any current or former employee, officer, director, individual consultant or individual independent contractor of any Acquired Company or any of its Subsidiaries has any liability, direct the beneficiaries or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director dependents of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”)Person. Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of Plan, the Code, (A) as of the last day of the most recent plan year ended prior Acquired Companies have made available to the date hereof, as of the date hereof and as of the Closing DatePurchaser, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did Merger Subs or their representatives a complete and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation accurate copy of (A) Section 409A each Plan document and all amendments thereto, or a written description of any Plan that is not set forth in a written plan document, (B) each trust agreement, insurance contract or other document relating to the Codefunding of benefits under any Plan, (C) the most recent summary plan description and summary of material modifications thereto, (D) for the recent year, the annual report on Form 5500, together with all required schedules and financial statements thereto, (E) the most recently received IRS determination, advisory or opinion letter, as applicable, and (B)(1F) the proposed most recent actuarial report and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1financial statement, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeas applicable.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of The Company has not, or during the past six (6) years, had any employees. The Company does not sponsor, maintain or contribute to, and the Company Disclosure Schedule sets forth a truehas no liability with respect to, complete and correct list of each “any employee benefit plan” plan (as defined in by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of Neither the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawnor any ERISA Affiliate maintains, including, but not limited contributes to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended is obligated to be “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Servicecontribute to, or ever has pending an application for such determination from the Internal Revenue Service with respect maintained, contributed to, been obligated to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expiredcontribute to, andor withdrawn from, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is employee benefit plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Code or Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) 302 of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that . The Company has not been satisfied in fullincurred, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could would reasonably be expected to result in incur, any material liability under Title IV of ERISA. Except as required by applicable provisions of the Companies Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state Law, neither the Company nor any ERISA Affiliate is obligated to provide retiree or post-employment welfare benefits including medical, disability, or life insurance benefits to any current or former employee, officer, or director of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claimCompany. Each Neither the Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) nor any ERISA Affiliate has incurred any liability for any tax imposed under Chapter 43 of the Code and any award thereunder, in each case that is subject to or civil liability under Section 409A 502 (i) or (l) of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodeERISA.
(c) Neither Except as set forth in Section 3.18(c) of the Companies Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the transactions contemplated herein (either alone or in combination with any of their Subsidiaries willother event (including, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor IPO and the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (ithe Other Agreements)) will result in any material payment or benefit becoming due or payable, or required to be provided, to any directoremployee, employee former employee, officer or independent contractor director of the Companies Company or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on “excess parachute payment” within the right meaning of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (vSection 280G(b)(1) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code to any employee, former employee, officer or director of the Company.
(d) The Company’s relationships with all individuals who act as consultants can be terminated at any income Taxes under time for any reason upon no more than 30 days written notice without amounts being owed to such individuals, other than with respect to compensation or payments accrued before the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.notice of termination. All individuals who perform services for the Company who have been classified as other than employees have been properly classified.
(e) No labor organization or group of employees The Company has not taken any action that is subject to the requirements of the Companies or any of their Subsidiaries has made a pending demand for recognition or certification, Worker Adjustment and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board Retraining Notification Act or any other labor relations tribunal or authoritysimilar applicable state Laws. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any Section 3.18(e) of the Companies or any Seller Disclosure Schedule sets forth the name of their Subsidiaries. Each of each Person whose employment with the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and employment practicesCompany has been terminated since January 1, terms and conditions of employment, wages and hours and occupational safety and health2010.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (LightBeam Electric Co)
Employee Matters. (a) Section 3.11 2.14(a) of the Company Disclosure Schedule Letter sets forth a true, complete and correct list of each (i) all “employee benefit plan” plans”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employmentall other employee benefit programs, consultingpolicies, bonusarrangements or payroll practices, incentive including, without limitation, any such programs, policies, arrangements or payroll practices providing severance pay, sick leave, vacation pay, salary continuation for disability, death benefits, retirement benefits, deferred compensation, vacationbonus pay, incentive pay, stock option options, hospitalization insurance, medical insurance, life insurance, welfare benefits, cafeteria benefits, dependent care reimbursements, prepaid legal benefits, scholarships or other equity-basedtuition reimbursements, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intosponsored, maintained or contributed to by any Company or any of its Subsidiaries the Acquired Companies or to which the Acquired Companies are obligated to contribute or have any Company Liability (contingent or otherwise) thereunder for current or former employees, directors or consultants of the Acquired Companies, maintained or sponsored by the Acquired Companies or to which the Acquired Companies or any trade or business (whether or not incorporated) which is or has ever been under control or treated as a single employer with the Company under Section 414(b), (c), (m), or (o) of its Subsidiaries is the Code (an “ERISA Affiliate”) has contributed or has ever been obligated to contributecontribute or has any Liability (contingent or otherwise) and (ii) all employment, change in control, retention, bonus, severance, termination, transaction, consulting and other similar agreements under which any director, or with respect to which any current employee or consultant of the Acquired Companies that earns in excess of $250,000 per annum (each, a “Company or any of its Subsidiaries Employee”) has any liability, direct right to compensation or indirect, contingent or otherwise benefits (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement(i) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof and (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(fii) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Employee Benefit Plans”).
(b) Neither the Company nor any ERISA Affiliate maintains, sponsors, contributes to or has any Liability (icontingent or otherwise), or has within the past six (6) years maintained, sponsored, contributed to or has any Liability (contingent or otherwise), any employee benefit plan subject to Section 412 of the Code or Title IV of ERISA.
(c) Each Employee Benefit Plan that is intended to qualify under Section 401 of the Code and the trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and to the Company’s Knowledge, nothing has occurred with respect to the operation of any such Employee Benefit Plan that would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code.
(d) There has been no material violation of ERISA or the Code with respect to the filing of applicable reports, documents and notices regarding the Employee Benefit Plans with the Secretary of Labor or the Secretary of the Treasury or the furnishing of required reports, documents or notices to the participants or beneficiaries of the Employee Benefit Plans.
(e) There are no pending, or, to the Company’s Knowledge, threatened actions, claims or lawsuits which have been asserted or instituted against the Employee Benefit Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Employee Benefit Plans with respect to the operation or administration of such plans or the investment of plan assets (other than routine benefit claims), nor does the Company have Knowledge of facts which could form the basis for any such claim or lawsuit. No Employee Benefit Plan has been the subject of an audit, investigation or examination by any Governmental Entity within the last three (3) years.
(f) The Employee Benefit Plans have been maintained, in all material respects, in accordance with their terms and with all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable federal and state laws and regulations. None of the Acquired Companies, or, to the Company’s Knowledge, any “party in interest” or “disqualified person” with respect to the Employee Benefit Plans has been operated and administered engaged in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be a non-exempt “qualifiedprohibited transaction” within the meaning of Section 401(a) 406 of ERISA or 4975 of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service . Other than with respect to those provisions for which the remedial amendment period under Section 401(b) Company Stock Plan, no stock or other security issued by the Company or any Affiliate forms or has formed a part of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company any Employee Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides Plan. All material benefits, includingcontributions and premiums required by and due under the terms of each Employee Benefit Plan or applicable Law have been timely paid or accrued, without limitationas applicable, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued respects, in accordance with generally accepted accounting principles; the terms of such Employee Benefit Plan, the terms of all applicable Laws and GAAP.
(viiig) neither None of the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies Employee Benefit Plans provide retiree life, retiree health or other benefits except as may be required under COBRA or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 similar state or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of local law and at the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any sole expense of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability Employee. The Company and the ERISA Affiliates have at all times materially complied with the notice and health care continuation requirements of COBRA and the Companies or any Health Insurance Portability and Accountability Act of their Subsidiaries and1996, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeas amended.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dh) Neither the execution or and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement Transactions will, either alone or in conjunction with any other upon the occurrence of another event, ; (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any directoremployee (current, employee former or independent contractor retired) of the Companies or any of their Subsidiaries or to such individuals in the aggregate, Acquired Companies; (ii) materially increase the amount or value of any benefit or compensation benefits otherwise payable or required to be provided to under any such director, employee or independent contractor, Employee Benefit Plan; (iii) result in the acceleration of the time of payment, vesting, exercisability payment or funding vesting of any such benefit benefits under any Employee Benefit Plan; or compensation, (iv) constitute a “change in control” or similar event under any Employee Benefit Plan. Neither the execution of this Agreement nor the consummation of any of the Transactions will, either alone or in combination with any other event, result in any material limitation on “excess parachute payments” by the right Acquired Companies within the meaning of Section 280G of the Companies Code. No current or any of their Subsidiaries to amendformer employee, merge or terminate any Company Benefit Plan or related trustdirector, or (v) consultant has or will obtain a right to receive a gross-up payment from the Acquired Companies with respect to any excise or additional taxes that may be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) imposed pursuant to Section 409A of the reimbursement of excise Taxes under Code, Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthotherwise.
(fi) The Acquired Companies and their Subsidiaries do not maintain have any material Company Employee Benefit Plans (i) outside that are subject to the Laws of a jurisdiction other than the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.United States.
Appears in 1 contract
Employee Matters. (a) Section 3.11 As soon as practicable following the date that is sixty (60) days after the Closing and subject to applicable securities Laws, Acquiror shall file an effective registration statement on Form S-8 (or other applicable form) with respect to the Acquiror Common Stock issuable under the Acquiror Incentive Plan and the Acquiror ESPP, and Acquiror shall use commercially reasonable efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Acquiror Incentive Plan and the Acquiror ESPP remain outstanding.
(b) Notwithstanding anything herein to the contrary, Acquiror, First Merger Sub, Second Merger Sub and the Company Disclosure Schedule sets forth a trueacknowledge and agree that all provisions contained in this Section 7.14 are included for the sole benefit of Acquiror and the Company, complete and correct list of each “that nothing in this Agreement, whether express or implied, (i) shall be construed to establish, amend, or modify any employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitmentarrangement, whether written or unwritten(ii) shall limit the right of Acquiror, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intotheir respective Affiliates to amend, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent terminate or otherwise (including modify any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers or other employee benefit plan, agreement or other arrangement following the Closing Date, or (iii) shall assume pursuant confer upon any person who is not a party to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyany equityholder, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of servicedirector, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Companymanager, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any directorofficer, employee or independent contractor of the Companies Company, or any of their Subsidiaries or to such individuals participant in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trustother employee benefit plan, agreement or other arrangement (or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be nonthird-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, party beneficiary or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit right of any individual whose principal place of employment is outside of the U.S.kind or nature whatsoever.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ventoux CCM Acquisition Corp.)
Employee Matters. (ai) Section 3.11 5.03(m) of the Company Company’s Disclosure Schedule sets forth contains a true, true and complete and correct list of each deferred compensation and each bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement, medical, surgical, hospitalization, life insurance and other “employee benefit welfare” plan” as defined in , fund or program (within the meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”); each profit-sharing, stock bonus or other “pension” plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, termination or severance agreement change in control, consulting, retirement and other compensation contracts, arrangements, commitments or understandings with Company pursuant to which a severance, termination, change in control or similar payment may be paid; and each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company, or by any trade or business, whether or not subject incorporated, that together with the Company would be deemed a “single employer” within the meaning of section 4001(b) of ERISA (each an “ERISA Affiliate”), or to ERISAwhich the Company or any ERISA Affiliate is party, in each case for the benefit of any employee of the Company (the “Benefit Plans”).
(ii) With respect to each Benefit Plan, the Company has heretofore made available to Parent copies of each of the following documents, as relevant: (A) a copy of the Benefit Plan and any amendments thereto; (B) a copy of the most recent annual report, actuarial report and summary plan description; (C) any trust or other funding agreement and the latest financial statements thereof; and (D) the most recent determination letter received from the Internal Revenue Service with respect to each Benefit Plan intended to qualify under Section 401 of the Code.
(iii) No liability under Title IV or Section 302 of ERISA has been incurred by the Company and/or any ERISA Affiliate that has not been satisfied in full, and each no condition exists that presents a material employmentrisk to the Company or any ERISA Affiliate of incurring any such liability, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe than liability for premiums due the Pension Benefit Guaranty Corporation (which premiums have been paid when due). This representation is made with respect to any employee benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit arrangement subject to Title IV of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or ERISA to which the Company and/or any Company or any of its Subsidiaries is obligated to contributeERISA Affiliate made, or with respect was required to which any Company or any of its Subsidiaries has any liabilitymake, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as contributions during the “Company Benefit Plans”). Section 3.11 six-year period ending on the last day of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant most recent plan year ended prior to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)Closing Date.
(b) (iiv) Each of the Company Benefit Plans Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company . Each Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code, has received Code is the subject of a favorable currently effective determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service stating that it is so qualified. All contributions required to be made with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV on or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); Date have been timely made.
(v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to No Benefit Plan is a “multiemployer pension plan,” (as such term is defined in Section 3(37) of ERISA.
(vi) or a plan that has two or more contributing sponsors at least two of whom There are not under common controlno legal actions, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim claims (other than routine benefit claims for benefits) bymade in the ordinary course), on behalf of government proceedings or against any government inquiries, pending or to the Knowledge of the Company, threatened, with respect to any such Benefit Plans, and the Company Benefit Plans or has no Knowledge of any trusts related thereto fact which could reasonably be expected to result in give rise to any material liability such legal action, claim, government proceeding or government inquiry. Neither the Company nor to the Knowledge of the Companies Company, any other person or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation entity who or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation planparty in interest” within the meaning (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 409A(d)(14975(e)(2) of the Code and Code) has acted or failed to act with respect to any award thereunder, such Benefit Plans in each case that is subject to any manner which constitutes: (A) a breach of fiduciary responsibility under ERISA; (B) a prohibited transaction under Section 409A 406 of ERISA or Section 4975 of the Code, has been operated in compliance in all ; or (C) any other material respects with Section 409A violation of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of ERISA or the Code. The Company is not obligated to indemnify, and (B)(1) reimburse, or contribute to the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1liabilities or expenses of any person or entity who may have committed or been involved in any such fiduciary breach, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A prohibited transaction, or material violation of ERISA or the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S...
Appears in 1 contract
Samples: Merger Agreement (Eagle Bancorp Inc)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets Except as set forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(33.14(a) of the Employee Retirement Income Security Seller Disclosure Schedule, in the last two (2) years, (i) there has been no federal or state claim filed, processed or otherwise litigated (including court claims, complaints or charges before a federal or state administration agency) alleging discrimination or harassment on the basis of sex, age, disability (as defined by the Americans with Disabilities Act of 1974, as amended (“ERISA”or corresponding state law), whether race, national origin, religion or not subject federal or state statutory discrimination claim, complaint or charge relating to ERISA, and each material employment, consultingor any common law claim (including claims of wrongful termination and/or tort claims) by any Employee against a Company, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether nor is any such claim threatened in writing; and (ii) neither Company nor Parent has received any written or unwritten, for the benefit notice of any employee, former employee, director claim that it has failed to comply in any respect with any Law relating to the employment or former director termination of employment of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise the Employees (including any liability arising out provisions thereof relating to wages, hours, collective bargaining, the payment of an indemnificationsocial security and payroll taxes, guaranteeequal employment opportunity, hold harmless employment discrimination, failure to reasonably accommodate a disability, family or similar agreementmedical leave, immigration, including IRCA, the WARN Act, and employee safety) or otherwise providing benefits to that it is liable for any current, former or future employee, officer or director arrearage of any Company wages or any of its Subsidiaries Tax or penalty for failure to comply with any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(fforegoing, nor during the last two (2) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)years has any such claim been threatened in writing.
(b) (i) Each of the Company Benefit Plans has been operated and administered Except as set forth in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a3.14(b) of the CodeSeller Disclosure Schedule, has received there is no pending claim against a favorable determination letter from the Internal Revenue Service, Company by any Employee under any workers' compensation plan or has pending an application policy or for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period long-term disability under any long- term disability plan in excess of $100,000.
(c) Section 401(b3.14(c) of the Code Seller Disclosure Schedule lists each collective bargaining agreement or other labor union contract to which a Company is a party. Except as disclosed in the Seller Disclosure Schedule, in the last two (2) years there has not expiredbeen no work stoppage, andstrike, arbitration proceeding or other concerted action by any Employees, and there is no strike, labor dispute or union organization activity pending or, to the knowledge Knowledge of Seller, there threatened in connection with a Company.
(d) Except as set forth in Section 3.14(d) of the Seller Disclosure Schedule, the employment of each Employee of a Company is not terminable at the will of such Company, and neither Company is a party to any reason why employment, non-competition, severance or similar contract or agreement with any Employee of such Company (any such determination letter should be revoked; agreement, an “Employment Agreement”). To the Knowledge of Seller, no Employee of a Company is a party to, or is otherwise bound by, any agreement, including any confidentiality, non-competition or proprietary rights agreement, between such Employee and any Person other than a Company or Parent, as the case may be, that adversely affects the performance of that Employee's duties as an employee of a Company.
(iiie) Seller has made available to Purchaser concurrently with respect to each Company Benefit Plan that is subject to Title IV or Section 302 Seller's execution and delivery of ERISA or Section 412 or 4971 this Agreement a correct and complete list of all employees of the Code, (A) Companies as of the last day of the most recent plan year ended a date not more than five (5) Business Days prior to the date hereof, and sets forth for each such employee the following: (i) name, (ii) title or position and employment status, (iii) hire date or date of commencement of employment, (iv) current annual base compensation rate; and (v) commission, bonus or other incentive-based compensation provided to each such individual as of the date hereof hereof. Except to the extent caused by the date of this Agreement and as of the Closing DateDate occurring between normal paydays and except for any other employment terms providing for deferred or contingent accrual or payment of compensation, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did commissions, bonuses and does not exceed the then current value of assets of such Company Benefit Plan other compensation due and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior payable to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current for services performed on or prior plan years to Closing Date hereof have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to full. At Closing, Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 3.14 of the Code; Seller's Disclosure Schedule will contain a correct and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf complete list of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of former employees of the Companies or any of their 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 threatened whose employment was terminated in the ninety (90) days prior to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthClosing.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 With respect to each Benefit Plan, the Company has made available to Parent a true and correct copy of (i) the most recent annual report (Form 5500 and Schedules thereto) filed with the Internal Revenue Service, (ii) such Benefit Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Benefit Plan and any predecessor plans referred to therein, service provider agreements, insurance contracts, and agreements with investment managers, including all amendments thereto (iv) current summary plan descriptions of each Benefit Plan subject to ERISA and any similar descriptions of all other Benefit Plans, (v) the most recent determination of the Company Disclosure Schedule sets forth a true, complete and correct list IRS with respect to the qualified status of each “employee benefit plan” as defined in Benefit Plan that is intended to qualify under Section 3(3401(a) of the Employee Retirement Income Security Act Code (a "Qualified Plan"), and (vi) the most recent accountings with respect to any Benefit Plan funded through a trust.
(b) Neither the Company nor any of 1974its Subsidiaries maintains or is obligated to provide benefits under any life, medical or health plan which provides benefits to retirees or other terminated employees other than benefit continuation rights under the Consolidated Omnibus Budget Reconciliation of 1985, as amended (“ERISA”"COBRA").
(c) Neither the Company, whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or nor any ERISA Affiliate has at any time contributed to by any "multiemployer plan", as that term is defined in Section 4001 of ERISA.
(d) Neither the Company or nor any of its Subsidiaries or to which any Company ERISA Affiliate or any predecessor thereof maintains, has maintained at any time during the five-year period preceding the date of its Subsidiaries this Agreement, or is obligated to contributeprovide benefits under any pension plan subject to Part 3 of Title I of ERISA, Section 412 of the Code, or Title IV of ERISA.
(e) No rights have been granted to any person under the Company Stock Appreciation Rights Plan.
(f) Except as disclosed in the Disclosure Memorandum with specific reference to this Section, each Benefit Plan covers only employees and directors who are employed by, or a director of, the Company or a Subsidiary (or former employees, directors or beneficiaries with respect to which any service with the Company or any a Subsidiary), so that the transactions contemplated by this Agreement will require no spin-off of its Subsidiaries has any liability, direct assets and liabilities or indirect, contingent other division or otherwise (including any liability arising out transfer of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits rights with respect to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)plan.
(b) (ig) Each of the Company Benefit Plans is, and its administration is and has been operated and administered since inception, in all material respects in accordance with compliance with, and neither the Company nor any Subsidiary has received any claim or notice that any such Benefit Plan is not in compliance with, all applicable lawlaws, includingregulations, but not limited toorders, and prohibited transactions exemptions, including the 14 requirements of ERISA, the Code Code, the Age Discrimination in Employment Act, the Equal Pay Act and in each case Title VII of the regulations thereunder; (ii) each Company Benefit Civil Rights Act of 1964. Each Qualified Plan intended to be “qualified” within the meaning of is qualified under Section 401(a) of the Code, has received a favorable determination letter from and, if applicable, complies with the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under requirements of Section 401(b401(k) of the Code. Each Benefit Plan which is intended to provide for the deferral of income, the reduction of salary or other compensation or to afford other tax benefits complies with the requirements of the applicable provisions of the Code or other laws required in order to provide such tax benefits.
(h) No event has not expiredoccurred, and, to the knowledge of Sellerthe Company, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and exists no condition exists that presents a risk to the Companies, their Subsidiaries or any set of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction circumstances in connection with any Benefit Plan, under which the Companies Company or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 Subsidiary, directly or 502(i) of ERISA indirectly (through any indemnification agreement or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pendingotherwise), threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in be subject to any risk of material liability under Section 409 of the Companies or any of their Subsidiaries andERISA, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1502(l) of the Code and any award thereunderERISA, in each case that is subject to Title IV of ERISA or Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 4975 of the Code.
(ci) Neither No employer securities, employer real property or other employer property is included in the Companies nor assets of any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dj) With respect to the Benefit Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company, there exists no condition or set of circumstances, other than as disclosed in the Disclosure Memorandum with specific reference to this Section, in connection with which the Company or any of its Subsidiaries could be subject to any liability that, (i) as of the date hereof is reasonably likely to result in Losses in excess of $250,000 individually or $750,000 in the aggregate, or (ii) between the date hereof and the Closing Date would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect (except liability for benefits claims and funding obligations payable in the ordinary course), under ERISA, the Code or any other applicable law. Neither the execution Company nor any of its Subsidiaries has scheduled or delivery agreed upon future increases of benefit levels (or creations of new benefits) with respect to any Benefit Plan, and no such increases or creation of benefits have been proposed, made the subject of representations to employees or requested or demanded by employees under circumstances which make it reasonable to expect that such increases will be granted.
(k) Except as set forth in the Disclosure Memorandum with specific reference to this Agreement Section, with respect to the Benefit Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued in accordance with GAAP and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP, on the consolidated financial statements of the Company and its consolidated subsidiaries, which obligations, (i) as of the date hereof could result in Losses in excess of $250,000 individually or $750,000 in the aggregate, or (ii) between the date hereof and the Closing Date would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect.
(l) Except as set forth in the Disclosure Memorandum with specific reference to this Section, and except as described in Sections 5.15 and 3.18 hereof, neither the Company nor any Subsidiary is a party to any oral or written (i) consulting agreement not terminable on 60 days or less notice, (ii) agreement with any director, executive officer or key employee of the consummation Company 15 or any Subsidiary the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, or agreement with respect to any executive officer of the Company or any Subsidiary providing any term of employment or compensation guarantee extending for a period longer than one year, or (iii) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time benefits of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation which will be calculated on the right basis of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthtransactions contemplated by this Agreement.
(fm) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.following terms shall be defined as follows:
Appears in 1 contract
Employee Matters. (a) Section 3.11 Except as provided in Schedule 3.21, no employee of BCC is represented by a labor union and BCC has not entered into any collective bargaining agreements with any of its employees, nor has it received notice, in any manner, that any group of its employees is seeking to organize a bargaining unit or to engage in collective bargaining with BCC.
(b) Except as provided in Schedule 3.21, no officer or employee of BCC or other person has any written or oral agreement with BCC relating to his/her employment by BCC on a full-time, part-time or consultative basis;
(c) Each of the Company Disclosure Schedule sets forth officers of BCC, each key employee and each other employee now employed by BCC or a trueSubsidiary who has access to confidential information of BCC or such Subsidiary has executed an Employee Nondisclosure and Developments Agreement substantially in the form of Exhibit E (collectively, complete the "Employee Nondisclosure and correct list Developments Agreements"), and such agreements are in full force and effect.
(d) No officer or key employee of BCC or any Subsidiary has advised BCC or such Subsidiary (orally or in writing) that he or she intends to terminate employment with BCC or such Subsidiary.
(e) BCC and each “employee benefit plan” as defined Subsidiary has complied in Section 3(3) all material respects with all applicable laws relating to the employment of labor, including provisions relating to wages, hours, equal opportunity. collective bargaining and the payment of Social Security and other taxes, and with the Employee Retirement Income Security Act of 1974, as amended (“ERISA”"ER1SA"), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside Set forth in Schedule 3.21 is a list of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside names of the U.S.officers of BCC, together with the title or job classification of each such person and the total compensation paid to such person by BCC and/or its Subsidiaries in 1995 and the total compensation anticipated to be paid to each such person by in 1996.
Appears in 1 contract
Samples: Series B Stock Purchase Agreement (Balanced Care Corp)
Employee Matters. (a) Section 3.11 4.13(a) of the Company Disclosure Schedule sets forth Letter contains a true, true and complete and correct list of each “all: (i) employee benefit plan” plans (as defined in Section 3(3) of ERISA), including retirement, pension, profit sharing, savings, deferred compensation, supplemental retirement, hospitalization, medical, dental, vision care, disability, life, accident or other insurance plans, programs or arrangements, (ii) stock option, stock purchase, phantom stock or stock appreciation right, plans, programs or arrangements, (iii) severance, termination pay or supplemental unemployment benefits plans, programs or arrangements, and (iv) bonus or incentive plans, programs or arrangements (including fringe benefit plans or arrangements) sponsored, maintained or contributed to or required to be contributed to at any time by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)Company or by any trade or business, whether or not subject to ERISAincorporated ("ERISA Affiliate"), and each material employment, consulting, bonus, incentive that together with the Company would be deemed a "controlled group" within the meaning of Section 4001 of ERISA or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change Section 414 of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwrittenthe Code, for the benefit of any employee, former employee, director employee or former director employee of the Company, including any Company or any such type of its Subsidiaries entered intoplan established, maintained maintained, sponsored or contributed to by under the laws of any foreign country (the "Company Plans"). To the extent applicable, the Company has heretofore made available to Parent true and complete copies of (i) each Company Plan and, if the Company Plan is funded through a trust or any third party funding vehicle, a copy of its Subsidiaries the trust or to which any Company or any of its Subsidiaries is obligated to contributeother funding document, or (ii) the most recent determination letter issued by the IRS with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant for which such a letter has been obtained, (iii) annual reports on Form 5500 required to Section 5.8(f) be filed with any Governmental Entity for each Company Plan for the three most recent plan years and all required actuarial reports for the last three plan years of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)each Company Plan.
(b) (i) Each No Company Plan is subject to Title IV of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, ERISA or Section 412 of the Code and in each case neither the regulations thereunder; Company nor any ERISA Affiliate made, or was required to make, contributions to any employee benefit plan subject to Title IV of ERISA or Section 412 of the Code during the six year period ending on the Effective Time.
(iic) each Neither the Company Benefit Plan intended nor any ERISA Affiliate maintains or has an obligation to be “qualified” contribute to or has within the past six years maintained or had an obligation to contribute to a "multiemployer plan" within the meaning of Section 401(a3(37) of ERISA.
(d) Each Company Plan that utilizes a funding vehicle described in Section 501(c)(9) of the Code or is subject to the provisions of Section 505 of the Code has been the subject of a notification by the IRS that such funding vehicle (i) qualifies for tax-exempt status under Section 501(c)(9) of the Code and (ii) complies with Section 505 of the Code, has received except for those Company Plans listed on Section 4.13(d) of the Company Disclosure Letter which the IRS does not as a favorable determination letter from the Internal Revenue Service, or has pending an application for matter of policy issue such determination from the Internal Revenue Service notification with respect to those provisions for which that particular type of plan. Each such Company Plan satisfies, where appropriate, the remedial amendment period under Section 401(brequirements of Sections 501(c)(9) and 505 of the Code Code.
(e) There has not expiredbeen no event or circumstance which has resulted in any liability being asserted by any Company Plan, and, to the knowledge of Seller, there is not Pension Benefit Guaranty Corporation or any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to other Person or entity under Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of Code against the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that Affiliate and there has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries any event or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances circumstance which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeliability.
(cf) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any The Company Benefit Plan which is not an Assumed Plan a party to or a LFG Deferred Compensation Plan. For bound by the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value terms of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any collective bargaining agreement. The Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting the employment and employment practices, terms and conditions of employment, wages employment and wage and hours of its employees and occupational safety is not engaged in any unfair labor practice. There is no labor strike or labor disturbance pending or, to the knowledge of the Company, threatened against the Company, and healthduring the past five years the Company has not experienced a work stoppage.
(fg) The Companies Except as set forth in Section 4.13(g) of the Company Disclosure Letter, each Company Plan has been operated and their Subsidiaries do not maintain any material administered in accordance with its terms and applicable law, including Section 406 of ERISA and Section 4975 of the Code, for the last five (5) fiscal years and up to the effective date of this Agreement.
(h) Each Company Benefit Plans Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code.
(i) outside No Company Plan provides welfare benefits, including death or medical benefits, with respect to current or former employees or consultants of the U.S. Company beyond their retirement or other termination of service (other than coverage mandated by applicable law).
(j) There are no pending, threatened or anticipated claims by or on behalf of any Company Plan, by any employee or beneficiary covered under any such Company Plan with respect to such Company Plan, or otherwise involving any such Company Plan (other than routine claims for benefits).
(k) Section 4.13(k) of the Company Disclosure Letter sets forth a true and complete list as of the date hereof of each of the following agreements, arrangements and commitments to which the Company is a party or by which it may be bound (true and complete copies of which have been made available to Parent): (i) each employment, consulting, agency or commission agreement not terminable without liability to the Company upon 60 days' or less prior notice to the employee, consultant or agent; (ii) each agreement with any employee of the Company the benefits of which are contingent, or the terms of which are materially altered, upon the consummation of the transactions contemplated by this Agreement (whether alone or in conjunction with other actions); (iii) each agreement with respect to any employee of the Company providing any term of employment or compensation guarantee extending for a period longer than one year; and (iv) each other agreement or Company Plan any of the benefit benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any individual whose principal place of employment is outside of the U.S.transactions contemplated by this Agreement (whether alone or in conjunction with other actions) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(l) Except as set forth in Section 4.13(l) of the Company Disclosure Letter, (i) no employee of the Company will be entitled to any additional benefits or any acceleration of the time of payment or vesting of any benefits under any Company Plan as a result of the consummation of the transactions contemplated by this Agreement (whether alone or in conjunction with other actions), (ii) no amount payable or economic benefit provided by the Company (including any acceleration of the time of payment or vesting of any benefit) as a result of the consummation of the transactions contemplated by this Agreement (whether alone or in conjunction with other actions) could be considered an "excess parachute payment" under Section 280G of the Code, (iii) no Person is entitled to receive any additional payment from the Company (a "Parachute Gross-Up Payment") in the event that the excise tax of Section 4999 of the Code is imposed on such Person, and (iv) the Company has not granted to any Person any right to receive any Parachute Gross-Up Payment.
Appears in 1 contract
Samples: Merger Agreement (Steelcloud Inc)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true3.18(a) contains an accurate and complete list, complete and correct list as of the date hereof, of each material plan, program, policy, agreement, collective bargaining agreement or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, fringe, retirement, death, disability or medical benefits or other employee benefits or remuneration of any kind, including each employment, severance, retention, change in control or consulting plan, program arrangement or agreement, in each case whether written or unwritten or otherwise, funded or unfunded, including each “employee benefit plan,” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employmentwhich is or has been sponsored, consultingmaintained, bonuscontributed to, incentive or deferred compensationrequired to be contributed to, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for by the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intofor the benefit of any current or former employee, maintained independent contractor, consultant or contributed to by any director of the Company or any of its Subsidiaries or to which any (each, a “Company or any of its Subsidiaries is obligated to contributeEmployee”), or with respect to which any the Company or any of its Subsidiaries has or may have any liability, direct or indirect, contingent or otherwise (including any material liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Company Employee Plans”).
(b) The Company has made available to Parent correct and complete copies (or, if a plan is not written, a written description) of all Company Employee Plans and amendments thereto in each case that are in effect as of the date hereof, and, to the extent applicable, (i) all related trust agreements, funding arrangements and insurance contracts now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise, (ii) the most recent determination letter received regarding the tax-qualified status of each Company Employee Plan, (iii) the most recent financial statements for each Company Employee Plan, (iv) the Form 5500 Annual Returns/Reports for the most recent plan year for each Company Employee Plan, (v) the current summary plan description for each Company Employee Plan, and (vi) all actuarial valuation reports related to any Company Employee Plans.
(i) Each of the Company Benefit Plans Employee Plan has been operated established, administered, and administered maintained in all material respects in accordance with its terms and in material compliance with applicable lawLaws, including, including but not limited to, ERISA, to ERISA and the Code and in each case the regulations thereunderCode; (ii) each all the Company Benefit Plan Employee Plans that are intended to be “qualified” within qualified under Section 401(a) of the meaning Code are so qualified and have received timely determination letters from the IRS and, as of the date hereof, no such determination letter has been revoked nor, to the Knowledge of the Company, has any such revocation been threatened, and to the Knowledge of the Company, as of the date hereof, no circumstance exists that is likely to result in the loss of such qualified status under Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to the Company and its Subsidiaries, where applicable, have timely made all material contributions and other material payments required by and due under the terms of each Company Benefit Employee Plan that is subject and applicable Law, and all benefits accrued under any unfunded Company Employee Plan have been paid, accrued or otherwise adequately reserved to Title IV the extent required by, and in accordance with GAAP; (iv) except to the extent limited by applicable Law, each Company Employee Plan can be amended, terminated or Section 302 otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent, the Company or any of ERISA or Section 412 or 4971 its Subsidiaries (other than ordinary administration expenses and in respect of the Code, accrued benefits thereunder); (Av) as of the last day date hereof, there are no material audits, inquiries or Legal Proceedings pending or, to the Knowledge of the most recent plan year ended Company, threatened by the IRS or the U.S. Department of Labor, or any similar Governmental Authority with respect to any Company Employee Plan; (vi) as of the date hereof, there are no material Legal Proceedings pending, or, to the Knowledge of the Company, threatened with respect to any Company Employee Plan (in each case, other than routine claims for benefits); and (vii) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has engaged in a transaction that could subject the Company or any Subsidiary to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.
(d) No Company Employee Plan provides post-termination or retiree welfare benefits to any person for any reason, except as may be required by COBRA or other applicable Law, and neither the Company nor any Company ERISA Affiliate has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any Company Employee (either individually or to Company Employees as a group) or any other person that such Company Employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by COBRA or other applicable Law.
(e) No Company Employee Plan has within the three years prior to the date hereof, as been the subject of an examination or audit by a Governmental Authority or is the date hereof and as subject of the Closing Datean application or filing under, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitsis a participant in, includingan amnesty, without limitationvoluntary compliance, death self-correction or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred similar program sponsored by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; Governmental Authority.
(vif) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Employee Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, Code has been operated in compliance with such section and all applicable regulatory guidance (including, without limitation, proposed regulations, notices, rulings, and final regulations).
(g) Each of the Company and its Subsidiaries complies in all material respects with the applicable requirements of COBRA or any similar state statute with respect to each Company Employee Plan that is a group health plan within the meaning of Section 409A 5000(b)(1) of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeor such state statute.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dh) Neither the execution or delivery of this Agreement nor Agreement, the consummation of the Merger, nor any of the transactions contemplated by this Agreement will, will (either alone or in conjunction with upon the occurrence of any other event, additional or subsequent events): (i) result in entitle any material payment current or benefit becoming due or payable, or required to be provided, to any former director, employee employee, contractor or independent contractor consultant of the Companies Company to severance pay or any of their Subsidiaries or to such individuals in the aggregate, other payment; (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of accelerate the time of payment, funding, or vesting, exercisability or funding increase the amount of compensation due to any such benefit individual, (iii) limit or compensationrestrict the right of the Company to merge, amend or terminate any Company Employee Plan, (iv) increase the amount payable or result in any other material limitation on the right of the Companies or any of their Subsidiaries obligation pursuant to amend, merge or terminate any Company Benefit Plan or related trustEmployee Plan, or (v) be considered a change result in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A“excess parachute payments” within the meaning of Section 280G(b) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Code.
(ei) No labor organization or group The Company and each of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their its Subsidiaries. Each of the Companies and its Subsidiaries : (i) is in compliance in all material respects with all applicable laws Laws and collective bargaining agreements respecting hiring, employment, termination of employment, plant closing and mass layoff, employment discrimination, harassment, retaliation and employment practicesreasonable accommodation, leaves of absence, terms and conditions of employment, wages and hours of work, employee health and occupational safety safety, leasing and healthsupply of temporary and contingent staff, engagement of independent contractors, including proper classification of same, payroll taxes, and immigration with respect to Company Employees and contingent workers; and (ii) is in compliance with all applicable Laws relating to the relations between it and any labor organization, trade union, work council or other body representing Company Employees, except, in the case of clauses (i) and (ii) immediately above, where the failure to be in compliance with the foregoing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(fj) The Companies and Neither Company nor any of its Subsidiaries is party to, or subject to, any collective bargaining agreement or other agreement with any labor organization, work council or trade union with respect to any of its or their operations. No material work stoppage, slowdown or labor strike against the Company or any of its Subsidiaries do with respect to employees who are employed within the United States is pending, threatened or has occurred in the last two (2) years, and, to the Knowledge of the Company, no material work stoppage, slowdown or labor strike against the Company or any of its Subsidiaries with respect to employees who are employed outside the United States is pending, threatened or has occurred in the last two (2) years. As of the date hereof, none of the Company Employees are represented by a labor organization, work council or trade union and, to the Knowledge of the Company, there is no organizing activity, Legal Proceeding, election petition, union card signing or other union activity or union corporate campaigns of or by any labor organization, trade union or work council directed at the Company or any of its Subsidiaries, or any Company Employees. As of the date hereof, there are no Legal Proceedings, government investigations, or labor grievances pending, or, to the Knowledge of the Company, threatened relating to any employment related matter involving any Company Employee or applicant, including, but not maintain limited to, charges of unlawful discrimination, retaliation or harassment, failure to provide reasonable accommodation, denial of a leave of absence, failure to provide compensation or benefits, unfair labor practices, or other alleged violations of Law, except for any material of the foregoing which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(k) Neither the Company Benefit Plans nor any Company ERISA Affiliate has at any time contributed to or had any obligation to contribute to, or has had any liability (contingent or otherwise) with respect to (i) outside any "multiemployer plan", as that term is defined in Section 4001 of the U.S. or ERISA; (ii) for the any "employee benefit plan" subject to Title IV of any individual whose principal place of employment is outside ERISA or Section 412 of the U.S.Code; or (iii) any "multiple employer welfare arrangement" within the meaning of Section 3(40) of ERISA.
Appears in 1 contract
Samples: Merger Agreement (PLC Systems Inc)
Employee Matters. (a) Section 3.11 Except for any plan, fund, program, agreement or arrangement that is subject to the laws of any jurisdiction outside the United States, Schedule 3.12(a) of the Company Disclosure Schedule sets forth contains a true, true and complete and correct list of each “employee benefit material deferred compensation, incentive compensation, and equity compensation plan” as defined in ; material "welfare" plan, fund or program (within the meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")); material "pension" plan, whether fund or not subject to program (within the meaning ----- of Section 3(2) of ERISA, and ); each material employment, consultingtermination or severance agreement; and each other material employee benefit plan, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar planfund, program, agreement or commitmentarrangement, in each case, that is in writing and sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not incorporated (each, an "ERISA ----- Affiliate"), that together with the Company would be deemed a "single employer" --------- within the meaning of Section 4001(b) of ERISA, or to which the Company or an ERISA Affiliate is party, whether written or unwrittenoral, for the benefit of any employee, former employeeconsultant, director or former employee, consultant or director of any the Company or any Subsidiary of its Subsidiaries entered intothe Company. The plans, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plansfunds, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 arrangements listed on Schedule 3.12(a) of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant are referred to Section 5.8(f) of this Agreement (including herein collectively as the LFG Deferred Compensation "Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)." -----
(b) With respect to each Plan, the Company has heretofore delivered or made available to Parent true and complete copies of the Plan and any amendments thereto (ior if the Plan is not a written Plan, a description thereof), any related trust or other funding vehicle, the most recent reports or summaries required under ERISA or the Code and the most recent determination letter received from the Internal Revenue Service with respect to each Plan intended to qualify under Section 401 of the Code.
(c) Neither the Company nor any ERISA Affiliate nor any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Plan subject to Title IV of ERISA.
(d) No Plan is a "multiemployer plan," as defined in Section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each of the Company Benefit Plans Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, ERISA and the Code and in each case the regulations thereunder; Code.
(iif) each Company Benefit Each Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for in the case of such determination from the Internal Revenue Service with respect to those provisions a Plan for which a favorable determination letter has not yet been received, the applicable remedial amendment period under Section 401(b) of the Code has not expired, and, expired and each trust forming a part thereof is exempt from tax pursuant to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iiiSection 501(a) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, .
(Ag) Except as set forth in Section 3.12(g) of the last day of the most recent plan year ended prior to the date hereofCompany Disclosure Schedule, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitsmedical, includingsurgical, without limitationhospitalization, death or medical similar benefits (whether or not insured), with respect to current ) for employees or former employees or directors of any the Company or its Subsidiaries any Subsidiary for periods extending beyond their retirement or other termination of service, other than (Ai) coverage mandated by applicable law or law, (Bii) death benefits or retirement benefits under any “employee "pension plan” ," or (as such term iii) benefits the full cost of which is defined in Section 3(2borne by the current or former employee (or his or her beneficiary), dependant or other covered person.
(h) There are no pending, or to the knowledge of ERISA); (v) no Controlled Group Liability has been incurred by any the Company, any of its Subsidiaries threatened or any of their respective ERISA Affiliates anticipated, claims that has not been satisfied in full, and no condition exists that presents would reasonably be expected to have a risk to the Companies, their Subsidiaries Company Material Adverse Effect by or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies any Plan, by any employee or beneficiary covered under any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) Plan, or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or otherwise involving any of their Subsidiaries with respect to each Company Benefit such Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits).
(i) by, on behalf of or against any Except as set forth in Section 3.12 of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries andDisclosure Schedule, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement willwill not, either alone or in conjunction combination with any other another event, (i) result entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, except as expressly provided in any material this Agreement, or (ii) accelerate the time of payment or benefit becoming due or payablevesting, or required increase the amount of compensation due any such employee or officer, other than payments, accelerations or increases (x) under employee benefit plans that are subject to the laws of a jurisdiction outside of the United States and are listed on Section 3.12(i) of the Company Disclosure Schedule or (y) mandated by applicable law.
(j) No amounts payable under the Plans will fail to be provided, to any director, employee or independent contractor deductible for federal income tax purposes by virtue of Section 280G of the Companies Code.
(k) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company relating to, or change in employee participation or coverage under, a Plan which would increase materially the expense of maintaining such Plan above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof.
(l) To the knowledge of the Company, all employee benefit plans that are subject to the laws of any jurisdiction outside the United States have been maintained in substantial compliance with their terms and are in material compliance with such applicable laws, including relevant Tax laws, and the requirements of their Subsidiaries or any trust deed under which they were established, except for such exceptions to such individuals the foregoing which, in the aggregate, (iiwould not reasonably be expected to have a Company Material Adverse Effect. Section 3.12(l) materially increase of the amount or value Company Disclosure Schedule lists all material employee pension benefit plans that are subject to the laws of any benefit jurisdiction outside the United States except for such plans that are governmental or compensation otherwise payable statutory plans.
(m) Section 3.12(m) of the Company Disclosure Schedule lists each agreement, arrangement, understanding or required to be provided contract (a "Severance Contract") that ------------------ provides for severance, termination of employment, retention or other special transaction bonus or similar benefit, or other similar benefits, to any such director, employee or independent contractor, (iii) result in the acceleration former employee of the time Company ("Severance Benefits") and identifies the ------------------ Severance Benefits thereunder (it being understood that the omission from Schedule 3.12(m) of payment, vesting, exercisability the Company Disclosure Schedule of Severance Contracts under which the aggregate amount of Severance Benefits is less than $100,000 shall not be deemed a misrepresentation). No Severance Contract listed in such Section 3.12(m) entitles any such employee or funding of former employee to receive any such benefit or compensation, (iv) result in any material limitation on if the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of individual's employment is outside of terminated for "cause" or if the U.S.individual otherwise commits (by action or omission) an act constituting "cause".
Appears in 1 contract
Samples: Merger Agreement (North Face Inc)
Employee Matters. (a) Section 3.11 of the Company Mercantile Bankshares Disclosure Schedule sets forth a true, complete and correct list of each “"employee benefit plan” " as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, commitment for the benefit of any employee, former employee, director or former director of any Company Mercantile Bankshares or any of its Subsidiaries entered into, maintained or contributed to by any Company Mercantile Bankshares or any of its Subsidiaries or to which any Company Mercantile Bankshares or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof contribute (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”"MERCANTILE BANKSHARES BENEFIT PLANS"). Section 3.11 of the Company Disclosure Schedule identifies each Company ; PROVIDED, HOWEVER, that Mercantile Bankshares Benefit Plan shall exclude any plan, program, agreement or commitment that Buyers shall assume pursuant to Section 5.8(f) has been terminated and for which neither Mercantile Bankshares nor any of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective its Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)has any liability.
(b) With respect to each Mercantile Bankshares Benefit Plan, Mercantile Bankshares has made available to PNC true, complete and correct copies of the following (as applicable): (i) Each of the Company written document evidencing such Mercantile Bankshares Benefit Plans has been operated and administered Plan or, with respect to any such plan that is not in all material respects in accordance with applicable lawwriting, including, but not limited to, ERISA, the Code and in each case the regulations thereundera written description thereof; (ii) the most recent summary plan description, if any; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter from the IRS; (v) the most recent Form 5500 required to have been filed with the IRS, including all schedules thereto; (vi) any related trust agreements, insurance contracts or documents of any other funding arrangements; and (vii) all material amendments, modifications or supplements to any such document described in clauses (ii) through (v) and all amendments, modifications or supplements to any such documents described in clauses (i) and (vi).
(c) Mercantile Bankshares and each Company of its Subsidiaries have operated and administered each Mercantile Bankshares Benefit Plan in compliance with all applicable laws and the terms of each such plan. The terms of each Mercantile Bankshares Benefit Plan are in compliance with all applicable laws. Except as provided in Section 3.11(c) of the Mercantile Bankshares Disclosure Schedule, each Mercantile Bankshares Benefit Plan that is intended to be “"qualified” within the meaning of " under Section 401(a) 401 and/or 409 of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for IRS to such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, effect and, to the knowledge of SellerMercantile Bankshares, there is not any reason why any no fact, circumstance or event has occurred or exists since the date of such determination letter should that would reasonably be revoked; expected to adversely affect the qualified status of any such Mercantile Bankshares Benefit Plan. There are no pending or, to the knowledge of Mercantile Bankshares, threatened or anticipated claims by, on behalf of or against any of the Mercantile Bankshares Benefit Plans or any assets thereof (iii) other than routine claims for benefits). All contributions, premiums and other payments required to be made with respect to any Mercantile Bankshares Benefit Plan have been made on or before their due dates under applicable law and the terms of such Mercantile Bankshares Benefit Plan, and with respect to any such contributions, premiums or other payments required to be made with respect to any Mercantile Bankshares Benefit Plan that are not yet due, to the extent required by GAAP, adequate reserves are reflected on the consolidated balance sheet of Mercantile Bankshares included in the Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2006 (including any notes thereto) or liability therefor was incurred in the ordinary course of business consistent with past practice since June 30, 2006.
(d) With respect to each Company Mercantile Bankshares Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (Aii) the fair market value of the assets of such Plan equaled or exceeded the actuarial present value of all accrued benefits under such Mercantile Bankshares Benefit Plan (whether or not vested) as of the last day date of the most recent plan year ended actuarial valuation prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” ; (iii) no reportable event within the meaning of Section 4001(a)(164043(c) of ERISA did and does for which the 30-day notice requirement has not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SECbeen waived has occurred; (iv) no Company all premiums to the Pension Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined Guaranty Corporation have been timely paid in Section 3(2) of ERISA)full; (v) no Controlled Group Liability liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by any Company, Mercantile Bankshares or any of its Subsidiaries or any of their respective ERISA Affiliates that subsidiaries; and (vi) the PBGC has not been satisfied in fullinstituted proceedings to terminate any such Plan and, and to Mercantile Bankshares's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to the Companiesadminister, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies Plan. No Mercantile Bankshares Benefit Plan is a multiemployer plan or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a multiple employer plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m4001(a)(3) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.4063/4064 of
Appears in 1 contract
Samples: Merger Agreement (PNC Financial Services Group Inc)
Employee Matters. (a) Section 3.11 2.9.1 Schedule 2.9.1:
2.9.1.1 contains a complete and accurate list of the Company Disclosure Schedule sets forth following information for each employee, director, independent contractor and consultant of JJI and its Subsidiaries, including each employee on leave of absence or layoff status: employer; name; job title; date of hiring or engagement; current compensation paid or payable and any change of 5% or more in compensation since December 31, 2005; sick and vacation leave that is accrued but unused; 2005 MIC bonuses, estimated 2006 MIC bonuses and any other partially or fully accrued bonuses; health insurance options; and service credited for purposes of vesting and eligibility to participate under any Plan, or any other employee or director benefit plan;
2.9.1.2 contains a true, complete and correct accurate list of the following information for each “retired employee benefit plan” as defined or director of JJI and its Subsidiaries, or their dependents, receiving benefits or scheduled to receive benefits in Section 3(3) the future: name; pension benefits; pension option election; retiree medical insurance coverage; retiree life insurance coverage; and other benefits;
2.9.1.3 states the number of employees terminated by JJI and its Subsidiaries since December 31, 2004, and contains a complete and accurate list of the Employee Retirement Income Security Act following information for each such employee of 1974JJI and its Subsidiaries who has been terminated or laid off, as amended or whose hours of work have been reduced by more than fifty percent (“ERISA”), whether or not subject to ERISA, 50%) by JJI and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, its Subsidiaries: (i) the date of such termination, retentionlayoff or reduction in hours; (ii) the reason for such termination, change layoff or reduction in hours; and (iii) the location to which the employee was assigned.
2.9.2 JJI and its Subsidiaries have not violated the Worker Adjustment and Retraining Notification Act or any similar foreign, state or local Law.
2.9.3 To the Knowledge of controlJJI, profit-sharing, fringe benefit no former or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any current employee, former employeeofficer, director director, agent, consultant or former director contractor of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company JJI or any of its Subsidiaries is obligated to contributea party to, or is or has been otherwise bound by, any Contractual Obligation that in any way adversely affected, affects, or will affect the ability of JJI or its Subsidiaries or Parent to conduct the business as heretofore carried on by JJI and its Subsidiaries.
2.9.4 Except as set forth on Schedule 2.9.4,
2.9.4.1 neither JJI nor any Subsidiary of JJI nor any of the respective employees of any of them is subject to any collective bargaining agreement,
2.9.4.2 no petition for certification or union election is pending with respect to which any Company the employees of JJI or any of its Subsidiaries and no union or collective bargaining unit has any liability, direct sought such certification or indirect, contingent or otherwise (including any liability arising out recognition with respect to the employees of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company JJI or any of its Subsidiaries in the last five (5) years,
2.9.4.3 there are no strikes, slowdowns, work stoppages or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has controversies pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, andor, to the knowledge Knowledge of SellerJJI, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV threatened between JJI or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries and its respective employees, other than employee grievances arising in the ordinary course of business,
2.9.4.4 hours worked by and payment made to employees of JJI comply with the Fair Labor Standards Act and each other federal, state, provincial, local or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk foreign Law applicable to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liabilitymatters; (vi) and
2.9.4.5 neither the Companies JJI nor any Subsidiary of their Subsidiaries contributes on behalf of employees JJI is party to any employment contracts.
2.9.5 Upon payment of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction amount established in connection with which Section 1.7.1.1.9, neither the Companies or Surviving Company nor any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 Subsidiary of the Code; and (ix) there is no pending, threatened or anticipated claim Surviving Company (other than routine claims for benefitsXxxxxxxxxxx) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, will have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For obligation to pay severance benefits except the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planstandard severance benefits provided by Parent’s Affiliates.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Merger Agreement (Genlyte Group Inc)
Employee Matters. (a) Except as set forth in Section 3.11 3.13(a) of the Company Disclosure Schedule, neither the Company nor its subsidiaries has any employment or consulting Contracts for the compensation of any of its officers, directors, employees, consultants or agents or providing for such compensation directly or indirectly. Neither the Company nor its subsidiaries has any obligation to its officers, directors, employees, consultants or agents other than obligations arising in the ordinary course of business on account of wages, commissions, deferred compensation and salaries for prior services performed. Section 3.13(a) of the Company Disclosure Schedule sets forth the names of all employees of the Company showing the rate of annual compensation (including benefits and perquisites which would be deemed to constitute compensation under the Rules and Regulations of the Securities and Exchange Commission) as of the date hereof (estimated if not a truefixed rate) and the amount of any bonus paid in the Company’s last fiscal year. Section 3.13(a) of the Company Disclosure Schedule sets forth the names of all “associated persons”, complete investment adviser representatives and correct list registered representatives of each “the Company or any of its subsidiaries.
(b) Except as set forth in Section 3.13(b) of the Company Disclosure Schedule, neither the Company nor its subsidiaries sponsors, maintains, contributes to or is obligated to contribute to (or has been obligated to contribute to) any employee benefit plan” as defined in Section 3(3plans, programs, policies, practices, agreements and other arrangements providing benefits or compensation to any current or former employee, director or consultant or any beneficiary or dependent thereof, whether or not written and whether covering one person or more than one person or could be subject to any liability under (i) Title IV of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to (ii) section 302 of ERISA, (iii) sections 412 or 4971 of the Code, (iv) the continuation coverage requirements of section 601 et seq. of ERISA and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change section 4980B of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributeCode, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless v) corresponding or similar agreement) provisions of foreign laws or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such regulations. The employee benefit plans, programs, policies, practices, agreements and commitments, other arrangements disclosed pursuant to Section 3.14(a) are herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans Plan has been operated established, administered and administered in all material respects maintained in accordance with its terms and applicable law, including, including but not limited to, ERISA, to ERISA and the Code and in each case the regulations thereunderCode; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section section 401(a) of the Code is so qualified and the trusts maintained thereunder are exempt from taxation under section 501(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, and no condition exists that would reasonably be expected to adversely affect such qualification or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revokedexemption; (iii) with respect to each neither the Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, nor any of its Subsidiaries or any subsidiaries has incurred a liability under Title IV of their respective ERISA Affiliates that has not been satisfied in full, and no condition conditions exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could would reasonably be expected to result in such a claim. Each liability; (iv) there has been no amendment to, written interpretation of or announcement relating to, or change in employee participation or coverage under, any Company Benefit Plan that is a “nonqualified deferred compensation plan” within would increase materially the meaning expense of Section 409A(d)(1) of maintaining such plan above the Code and any award thereunder, level or expense incurred in each case that is subject respect thereof for the most recent fiscal year ended prior to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or date hereof; (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No no Company Benefit Plan provides for post-termination health or other welfare benefits other than as required under applicable law; (Avi) here are no pending, threatened or anticipated claims by or on behalf of any Company Benefit Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such plan (other than routine claims for benefits); (vii) with respect to each Company Benefit Plan, the Company has provided to NFP true and complete copies of, where applicable, (1) the reimbursement of excise Taxes under Section 4999 of Company Benefit Plan document (or if not written, a full and complete description thereof), including all amendments thereto, (2) the Code most recent Form 5500, (3) a summary plan description, (4) all material communications with the governmental or any income Taxes under the Code quasi-governmental entities or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certificationwith plan participants, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with (5) the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of most recent determination letter from the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthInternal Revenue Service.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Merger Agreement (National Financial Partners Corp)
Employee Matters. (a) Section 3.11 Parent Disclosure Schedule 4.15(a) contains an accurate and complete list, as of the Company Disclosure Schedule sets forth a truedate hereof, complete and correct list of each material plan, program, policy, agreement, collective bargaining agreement or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, fringe, retirement, death, disability or medical benefits or other employee benefits or remuneration of any kind, including each employment, severance, retention, change in control or consulting plan, program arrangement or agreement, in each case whether written or unwritten or otherwise, funded or unfunded, including each “employee benefit plan,” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employmentwhich is or has, consultingwithin the six (6) years prior to the Closing Date, bonusbeen sponsored, incentive maintained, contributed to, or deferred compensationrequired to be contributed to, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, by Parent for the benefit of any employee, current or former employee, director independent contractor, consultant or former director of any Company or any of its Subsidiaries entered intoParent (each, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributea “Parent Employee”), or with respect to which Parent has or may have any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any material liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Parent Employee Plans”).
(b) Parent has made available to the Company correct and complete copies (or, if a plan is not written, a written description) of all Parent Employee Plans and amendments thereto in each case that are in effect as of the date hereof, and, to the extent applicable, (i) Each all related trust agreements, funding arrangements and insurance contracts now in effect, (ii) the most recent determination letter received regarding the tax-qualified status of each Parent Employee Plan, (iii) the Company Benefit Plans most recent financial statements for each Parent Employee Plan, (iv) the Form 5500 Annual Returns/Reports for the most recent plan year for each Parent Employee Plan, (v) the current summary plan description for each Parent Employee Plan, and (vi) all actuarial valuation reports related to any Parent Employee Plans.
(c) (i) To the Knowledge of Parent, each Parent Employee Plan has been operated established, administered, and administered maintained in all material respects in accordance with its terms and in material compliance with applicable lawLaws, including, including but not limited to, ERISA, to ERISA and the Code and in each case the regulations thereunderCode; (ii) each Company Benefit Plan to the Knowledge of Parent, all the Parent Employee Plans that are intended to be “qualified” within qualified under Section 401(a) of the meaning Code are so qualified and have received timely determination letters from the IRS or may rely upon a favorable opinion letter and, as of the date hereof, no such determination letter or opinion letter has been revoked nor, to the Knowledge of Parent, has any such revocation been threatened, and to the Knowledge of Parent, as of the date hereof, no circumstance exists that is likely to result in the loss of such qualified status under Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) Parent has timely made all material contributions and other material payments required by and due under the terms of each Parent Employee Plan and applicable Law, and all benefits accrued under any unfunded Parent Employee Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with GAAP; (iv) except to the extent limited by applicable Law, each Parent Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent, the Company or any of its Subsidiaries (other than ordinary administration expenses and in respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, accrued benefits thereunder); (Av) as of the last day date hereof, there are no material audits, inquiries or Legal Proceedings pending or, to the Knowledge of Parent, threatened by the IRS or the U.S. Department of Labor, or any similar Governmental Authority with respect to any Parent Employee Plan; (vi) as of the most recent plan year ended date hereof, there are no material Legal Proceedings pending, or, to the Knowledge of Parent, threatened with respect to any Parent Employee Plan (in each case, other than routine claims for benefits); and (vii) to the Knowledge of Parent, Parent has not engaged in a transaction that could subject Parent to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.
(d) No Parent Employee Plan provides post-termination or retiree welfare benefits to any person for any reason, except as may be required by COBRA or other applicable Law, and neither Parent nor any Parent ERISA Affiliate has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any Parent Employee (either individually or to Parent Employees as a group) or any other person that such Parent Employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by COBRA or other applicable Law.
(e) No Parent Employee Plan has within the three years prior to the date hereof, as been the subject of an examination or audit by a Governmental Authority or is the date hereof and as subject of the Closing Datean application or filing under, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitsis a participant in, includingan amnesty, without limitationvoluntary compliance, death self-correction or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred similar program sponsored by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; Governmental Authority.
(vif) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Each Parent Employee Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, Code has been operated in compliance with such section and all applicable regulatory guidance (including, without limitation, proposed regulations, notices, rulings, and final regulations).
(g) Parent complies in all material respects with the applicable requirements of COBRA or any similar state statute with respect to each Parent Employee Plan that is a group health plan within the meaning of Section 409A 5000(b)(1) of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codeor such state statute.
(ch) Neither Except as set forth on Parent Disclosure Schedule 4.15(h), neither the Companies execution of this Agreement, the consummation of the Merger, nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, will (either alone or in conjunction with upon the occurrence of any other event, additional or subsequent events): (i) result in entitle any material payment current or benefit becoming due or payable, or required to be provided, to any former director, employee employee, contractor or independent contractor consultant of the Companies Parent to severance pay or any of their Subsidiaries or to such individuals in the aggregate, other payment; (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of accelerate the time of payment, funding, or vesting, exercisability or funding increase the amount of compensation due to any such benefit individual, (iii) limit or compensationrestrict the right of Parent to merge, amend or terminate any Parent Employee Plan, (iv) increase the amount payable or result in any other material limitation on the right of the Companies or obligation pursuant to any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trustParent Employee Plan, or (v) be considered a change result in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A“excess parachute payments” within the meaning of Section 280G(b) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Code.
(ei) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries Parent: (i) is in compliance in all material respects with all applicable laws Laws and collective bargaining agreements respecting hiring, employment, termination of employment, plant closing and mass layoff, employment discrimination, harassment, retaliation and employment practicesreasonable accommodation, leaves of absence, terms and conditions of employment, wages and hours of work, employee health and occupational safety safety, leasing and healthsupply of temporary and contingent staff, engagement of independent contractors, including proper classification of same, payroll taxes, and immigration with respect to Parent Employees and contingent workers; and (ii) is in compliance with all applicable Laws relating to the relations between it and any labor organization, trade union, work council or other body representing Parent Employees, except, in the case of clauses (i) and (ii) immediately above, where the failure to be in compliance with the foregoing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(fj) The Companies and Parent is not party to, or subject to, any collective bargaining agreement or other agreement with any labor organization, work council or trade union with respect to any of its or their Subsidiaries do operations. No material work stoppage, slowdown or labor strike against Parent with respect to employees who are employed within the United States is pending, threatened or has occurred in the last two (2) years, and, to the Knowledge of Parent, no material work stoppage, slowdown or labor strike against Parent with respect to employees who are employed outside the United States is pending, threatened or has occurred in the last two (2) years. As of the date hereof, none of the Parent Employees are represented by a labor organization, work council or trade union and, to the Knowledge of Parent, there is no organizing activity, Legal Proceeding, election petition, union card signing or other union activity or union corporate campaigns of or by any labor organization, trade union or work council directed at Parent or any Parent Employees. As of the date hereof, there are no Legal Proceedings, government investigations, or labor grievances pending, or, to the Knowledge of Parent, threatened relating to any employment related matter involving any Parent Employee or applicant, including, but not maintain limited to, charges of unlawful discrimination, retaliation or harassment, failure to provide reasonable accommodation, denial of a leave of absence, failure to provide compensation or benefits, unfair labor practices, or other alleged violations of Law, except for any material Company Benefit Plans of the foregoing which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(k) Neither Parent nor any Parent ERISA Affiliate has at any time contributed to or had any obligation to, or has had any liability (contingent or otherwise) with respect to (i) outside any “multiemployer plan,” as that term is defined in Section 4001 of the U.S. or ERISA; (ii) for the any “employee benefit plan” subject to Title VI of any individual whose principal place of employment is outside ERISA or Section 412 of the U.S.Code’; or (iii) any “multiemployer welfare arrangement” within the meaning of Section 3(40) of ERISA.
Appears in 1 contract
Samples: Merger Agreement (Ruthigen, Inc.)
Employee Matters. (a) Section 3.11 Except as set forth on Schedule 2.14(a), no employees of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its the Subsidiaries entered into, maintained or contributed to (the "Employees") are represented by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless labor union or similar agreement) or otherwise providing benefits organization and there are no pending or, to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 Knowledge of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies Sellers, threatened activities the purpose of which is to achieve such representation of all or their respective Subsidiaries shall continue to maintain or sponsor (collectively, some of the “Assumed Plans”)Employees.
(b) Except as set forth on Schedule 2.14(b), (i) Each of the Company Benefit Plans has been operated Business is operating and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting Legal Requirements covering employment and employment practices, terms and conditions of employment, employment and wages and hours hours, including, without limitation, the Immigration Reform and Control Act, the Worker Adjustment and Retraining Notification Act of 1988 (the "Warn Act"), any Legal Requirements respecting employment discrimination, equal opportunity, affirmative action, employee privacy, wrongful or unlawful termination, workers' compensation, occupational safety and healthhealth requirements, labor/management relations and unemployment insurance, or related matters and there are no threatened or pending claims relating thereto; (ii) there is no labor strike, dispute, slowdown or stoppage pending or, to the Knowledge of the Company or the Sellers, threatened against or affecting the Business, and neither the Company nor any of the Subsidiaries has experienced any work stoppage or other labor difficulty; and (iii) except as set forth on Schedule 2.14(b), or as accrued on the Financial Statements, in the event of termination of the employment of any Employee, neither the Purchaser nor the Company or the Subsidiaries will, pursuant to any agreement with any of the Sellers, the Company or the Subsidiaries or by reason of any representation made or plan adopted by any of the Sellers, the Company or the Subsidiaries prior to the Closing, be liable to any employee for so-called "severance pay," parachute payments or any other similar payments or benefits, including, without limitation, post-employment healthcare (other than pursuant to COBRA) or insurance benefits.
(fc) The Companies Except as set forth on Schedule 2.14(c), none of the officers or other key employees of the Company or any of the Subsidiaries has notified any of the Sellers, the Company or the Subsidiaries of his or her present intention to terminate his or her employment with the Company or such Subsidiary. No director, officer or employee of or consultant to the Company or any of the Subsidiaries is in violation of any terms of any employment contract, non-competition agreement, non-disclosure agreement or other contract or agreement containing restrictive covenants relating to the right of any such director, officer, employee or consultant to be employed or engaged by the Company or any of the Subsidiaries.
(d) Except as set forth on Schedule 2.14(d), none of the Company or any of the Subsidiaries is involved in any transaction or other situation with any employee, officer, director or affiliate which may be generally characterized as a "conflict of interest," including, but not limited to, direct or indirect interests in the business of competitors, suppliers or customers of the Company or any of the Subsidiaries, and their Subsidiaries do not maintain any material Company Benefit Plans there are no situations with respect to the Business which involved or involves (i) outside the use of the U.S. any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) for the benefit making of any individual whose principal place direct or indirect unlawful payments to government officials or others from corporate funds or the establishment or maintenance of employment is outside any unlawful or unrecorded funds, (iii) the violation of any of the U.S.provisions of The Foreign Corrupt Practices Act of 1977, or any rules or regulations promulgated thereunder, (iv) the receipt of any illegal discounts or rebates or any other violation of the anti-trust laws or (v) any investigation of the Company, any of the Subsidiaries or, with respect to the Company, any of the Sellers, by the SEC, the STB or any other federal, foreign, state or local government agency or authority.
(e) Attached hereto as Schedule 2.14(e) is the most recent payroll of the Company and the Subsidiaries, indicating the names and compensation of their employees. All information is correct as of such date.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent dependant thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) With respect to each Company Benefit Plan, Company has made available to Parent true, complete and correct copies of the following (as applicable): (i) Each the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter from the IRS; (v) the most recent Form 5500 required to have been filed with the IRS, including all schedules thereto; (vi) any related trust agreements, insurance contracts or documents of any other funding arrangements; (vii) any notices to or from the IRS or any office or representative of the Department of Labor relating to any compliance issues in respect of any such Company Benefit Plan; (viii) all amendments, modifications or material supplements to any Company Benefit Plan; and (ix) documents evidencing any discrimination or coverage tests performed during the last plan year. Except as specifically provided in the foregoing documents made available to Parent, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has Company or any of its Subsidiaries taken substantial steps to make any such amendments or to adopt or approve any new Company Benefit Plan.
(c) With respect to each of the Company Benefit Plans Plans, no event has been occurred and there exists no condition or set of circumstances in connection with which Company or any of its Subsidiaries would be subject to any liability that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect on Company. Company and each of its Subsidiaries have operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan in compliance with all applicable laws and the terms of each such plan. The terms of each Company Benefit Plan are in compliance with all applicable laws. Each Company Benefit Plan that is intended to be “qualified” within the meaning of under Section 401(a) 401 and/or 409 of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for IRS to such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, effect and, to the knowledge of SellerCompany, there is not any reason why any no fact, circumstance or event has occurred or exists since the date of such determination letter should that would reasonably be revoked; (iii) with respect expected to each Company Benefit Plan that is subject to Title IV or Section 302 adversely affect the qualified status of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of any such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior Plan. There are no pending or, to the date hereof was properly reflected on the financial statements knowledge of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans Plans, any fiduciaries of such Company Benefit Plan (with respect to whom Company has an indemnification obligation) with respect to their duties to any Company Benefit Plan, or against the assets of such Company Benefit Plan or any trusts related thereto which could trust maintained in connection with such Company Benefit Plan (other than routine claims for benefits). All contributions, premiums and other payments required to be made with respect to any Company Benefit Plan have been made on or before their due dates under applicable law and the terms of such Company Benefit Plan, and with respect to any such contributions, premiums or other payments required to be made with respect to any Company Benefit Plan that are not yet due, to the extent required by GAAP, adequate reserves are reflected on the consolidated balance sheet of Company included in the Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2007 (including any notes thereto) or liability therefor was incurred in the ordinary course of business consistent with past practice since September 30, 2007. There is not now, and to the knowledge of Company there are no existing circumstances that would reasonably be expected to result in give rise to, any material liability requirement for the posting of security with respect to a Company Benefit Plan or the Companies imposition of any pledge, lien, security interest or encumbrance on the assets of Company or any of its Subsidiaries or any of their respective ERISA Affiliates (as defined below) under ERISA or the Code, or similar laws of foreign jurisdictions. No “excess contributions” have been made that would be non-deductible or that would subject Company or any of its Subsidiaries and, to the knowledge excise tax imposed under Section 4972 of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claimthe Code. Each To the extent any Company Benefit Plan that is provides benefits in the form of, or permits investment in, securities of Company or any of its Subsidiaries, the interests in such Company Benefit Plan are subject to a current, effective registration statement under the Securities Act, or are subject to an exemption from registration and the requirements of such exemption have been satisfied, and the participants in such plan have been provided a current prospectus to the extent required by applicable law.
(d) Neither Company nor any of its Subsidiaries nor any trade or business, whether or not incorporated, that, together with Company or any of its Subsidiaries would be deemed to be a “nonqualified deferred compensation single employer” within the meaning of Section 4001(b) of ERISA (an “ERISA Affiliate”), maintains or contributes to, or during the five-year period prior to the date hereof has maintained or contributed to, (x) any “employee benefit plan” within the meaning of Section 409A(d)(13(3) of the Code and any award thereunder, in each case ERISA that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 412 of the Code or Section 302 or Title IV of ERISA or (y) a “multiemployer plan” within the meaning of Section 3(37) and 4001(a)(3) of ERISA or a “multiple employer plan” within the meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code. Neither Company nor any income Taxes under of its Subsidiaries has incurred, either directly or indirectly (including as a result of any indemnification or joint and several liability obligation), any liability pursuant to Title I or IV of ERISA other than plan funding obligations in the ordinary course and Pension Benefit Guaranty Corporation (“PBGC”) premiums (including any Controlled Group Liability as a result of its relationship with an ERISA Affiliate) or the penalty Tax, excise Tax or joint and several liability provisions of the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened relating to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.employee benefit
Appears in 1 contract
Employee Matters. (a) Section 3.11 5.11(a) of the Company Ramius Disclosure Schedule sets forth a true, complete and correct list of each material “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director manager or former director manager of any Company Ramius or any of its Subsidiaries entered into, maintained or contributed to by any Company Ramius or any of its Subsidiaries or to which any Company Ramius or any of its Subsidiaries is obligated to contribute, or with respect to which any Company Ramius or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director manager of any Company Ramius or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Ramius Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) With respect to each Ramius Benefit Plan, Ramius has delivered or made available to Cowen a true, correct and complete copy of: (i) Each each writing constituting a part of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereundersuch Plan; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description and any material modifications thereto, if any (in each Company case, whether or not required to be furnished under ERISA); (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any.
(c) Each Ramius Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue ServiceIRS, or has pending an application for such determination from the Internal Revenue Service IRS with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of SellerRamius, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 . Each of the CodeRamius Benefit Plans has been operated and administered in accordance with applicable Law, (A) as of the last day of the most recent plan year ended prior to the date hereofincluding, as of the date hereof and as of the Closing Datebut not limited to, ERISA, the actuarially determined present value of all “benefit liabilities” within Code and in each case the meaning of Section 4001(a)(16regulations thereunder.
(d) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company No Ramius Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of Ramius or any Company or of its Subsidiaries beyond their retirement or other termination of service, other than (A1) coverage mandated by applicable law Law or (B2) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v. Except as could not be reasonably expected to result in a material liability to Ramius or any of its Subsidiaries, neither Ramius nor any of its Subsidiaries has engaged in a transaction in connection with which Ramius or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code. Except as could not be reasonably expected to result in a material liability to Ramius or any of its Subsidiaries no Controlled Group Liability has been incurred by any CompanyRamius, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and and, to the knowledge of Ramius, no condition exists that presents a risk to the CompaniesRamius, their any of its Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; . Except as could not be reasonably expected to result in a material liability to Ramius or any of its Subsidiaries, all contributions required to be made to any Ramius Benefit Plan by applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Ramius Benefit Plan, for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof have been fully accrued in accordance with generally accepted accounting principles.
(vie) neither Section 5.11(e) of the Companies Ramius Disclosure Schedule identifies each Ramius Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (a “Ramius Pension Plan”). With respect to each Ramius Pension Plan, the most recent actuarial report prepared by such plan’s actuary with respect to such plan in accordance with FASB No. 87 sets forth accurately the accrued benefit obligations of such plan, determined using the actuarial methods, factors, and assumptions contained in such report, and the fair market value of the assets of such plan, each as of the date set forth in such report, and since the date of such report there has been no material adverse change in the accrued benefit obligations or the fair market value of the assets of such plan. Neither Ramius, any of its Subsidiaries nor any of their Subsidiaries respective ERISA Affiliates contributes on behalf of employees of (or has contributed in the Companies or any of their Subsidiaries six years prior to the date hereof) to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; .
(viif) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is There are no pending, threatened or anticipated claim claims (other than routine claims for benefits) by, on behalf of or against any of the Company Ramius Benefit Plans or any trusts related thereto or fiduciaries thereof which could reasonably be expected to result in any a material liability of the Companies Ramius or any of their Subsidiaries andits Subsidiaries.
(g) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any manager, member, employee or independent contractor of Ramius or any of its Subsidiaries or to such individuals in the knowledge aggregate, (ii) materially increase the amount or value of Sellerany benefit or compensation otherwise payable or required to be provided to any such manager, member, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) result in any material limitation on the right of Ramius or any of its Subsidiaries to amend, merge or, terminate any Ramius Benefit Plan or related trust or (v) fail to be deductible by reason of Section 280G of the Code.
(h) All Ramius Benefit Plans subject to the laws of any jurisdiction outside of the United States (i) have been maintained in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment meet all requirements for such treatment, and (iii) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(i) No labor organization or group of employees of Ramius or any of its Subsidiaries has made a pending demand for recognition or certification, and there is are no existing conditionrepresentation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, situation with the National Labor Relations Board or set any other labor relations tribunal or authority. There are no organizing activities, strikes, work stoppages, slowdowns, lockouts, material arbitrations or material grievances, or other material labor disputes pending or threatened against or involving Ramius or any of circumstances which its Subsidiaries. Except as could not be reasonably be expected to result in such a claim. material liability to Ramius or any of its Subsidiaries, each of Ramius and its Subsidiaries is in compliance in all material respects 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.
(j) Each Company Ramius Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 20052006, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, Code and (B)(1) the proposed and final Treasury Regulations issued thereunder thereunder, where applicable, and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices Notices, and other interim guidance on Section 409A of the Code, where applicable.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Transaction Agreement and Agreement and Plan of Merger (Cowen Group, Inc.)
Employee Matters. (a) Section 3.11 3.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended and including the regulations promulgated thereunder (“ERISA”), whether written or not subject to ERISAunwritten, and as well as each other material employmentemployee or director benefit or compensation plan, consultingarrangement or agreement (whether written or unwritten), including any other material plan, arrangement or agreement providing bonus, supplemental income, incentive or deferred compensation, vacation, stock purchase, stock option or other equity-basedbased compensation, severance, termination, retention, change of change-in-control, profit-sharing, fringe benefit benefit, workers’ compensation, voluntary employees’ beneficiary association, health, welfare, accident, sickness, death, hospitalization, insurance, personnel policy, disability or other similar plan, program, agreement or commitment, whether written or unwritten, benefits for the benefit of any current, former or retired employee, former employeeconsultant, director independent contractor, other service provider or former director of any the Company or any of its Subsidiaries entered into, maintained or contributed to by any the Company or any of its Subsidiaries or to which any the Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof contribute (such plans, programs, agreements and commitmentsagreements, herein referred to as collectively, the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) For purposes of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyAgreement, the term “Assumed Plans”).
(b) ERISA Affiliate” means any entity that is a member of (i) Each a controlled group of corporations (as defined in Section 414(b) of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable lawCode), including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be a group of trades or businesses under common control (as defined in Section 414(c) of the Code), (iii) an affiliated service group (as defined under Section 414(m) of the Code or the regulations under Section 414(o) of the Code) or (iv) a “qualifiedcontrolled group” within the meaning of Section 401(a4001 of ERISA, any of which includes the Company or any of its Subsidiaries. Section 3.11(a) of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to Company Disclosure Schedule separately identifies each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation planForeign Plan” within the meaning of (as defined in Section 409A(d)(13.11(m) of the Code and any award thereunderbelow). Except for subsections (a), in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Codeb), and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubtm), the LandAmerica Financial Group, Inc. Cash Balance Plan is representations contained in this Section 3.11 shall not an Assumed apply to any Foreign Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Merger Agreement (Lecroy Corp)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth 2.19 contains a true, complete and correct accurate list of each “employee benefit plan” (and, as defined in Section 3(3indicated below, description) of (i) the Employee Retirement Income Security Act names and titles of 1974all consultants, as amended (“ERISA”)independent contractors, whether full-time, part-time, temporary, contract, leased or not subject to ERISA, and each material employment, consulting, bonus, incentive casual employees employed by or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, who provided services for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intosubsidiaries (collectively, maintained “Company Employees”), together with their status and location of their employment; (ii) the date each Company Employee was hired or contributed to by any retained; (iii) a list of all written employment, consulting or service contracts or offer letters between Company or any of its Subsidiaries or subsidiaries and the Company Employees; (iv) the rate of annual remuneration of each Company Employee at the date hereof, any bonuses paid since the end of the last completed financial year and all other bonuses, incentive schemes and benefits to which such Company Employee is or may be entitled; (v) the annual accrual rate and the total current accrued and unused amount of vacation or paid time off for each Company Employee as of the date hereof; (vi) the names of all inactive Company Employees, the reason they are inactive Company Employees, whether they are expected to return to work, and if so when, and the nature of any benefits to which such inactive Company Employees are entitled from Company or any of its Subsidiaries is obligated to contribute, subsidiaries; (vii) any employee handbook or with respect to which any Company personnel policies or any procedures manual in effect that governs the terms and conditions or privileges of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 employment of the Company Disclosure Schedule identifies each Employees; and (viii) particulars of all other material terms and conditions of employment or engagement of the Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including Employees and the LFG Deferred Compensation Plans) positions, title or the Companies or their respective Subsidiaries shall continue to maintain or sponsor classification held by them (collectively, the “Assumed PlansCompany Employee Matters”).
(b) (i) Each Company has provided or made available to Parent correct and complete copies of all documents including but not limited to all agreements, correspondence, files and policies, relating to the Company Benefit Plans Employee Matters.
(c) Company and each of its subsidiaries are in compliance in all respects with all currently applicable laws and regulations respecting terms and conditions of employment, including without limitation applicant and employee background checking, immigration laws, verification of employment eligibility, document retention and record keeping, discrimination in employment, wages and hours, leaves of absence (including, as legally applicable, the Family and Medical Leave Act, California Family Rights Act, and Pregnancy Disability Law), classification of workers as employees and independent contractors, classification of workers as exempt or nonexempt employees, and occupational safety and health and employment practices, and are not engaged in any unfair labor practice. Company has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended withheld all amounts required by law or by agreement to be “qualified” within withheld from the meaning wages, salaries, and other payments to employees; and is not liable for any arrears of Section 401(a) wages or any taxes or any penalty for failure to comply with any of the Code, has received a favorable determination letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there foregoing. Company is not liable for any reason why payment to any such determination letter should be revoked; (iii) with respect trust or other fund or to each Company Benefit Plan that is subject to Title IV any governmental or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured)administrative authority, with respect to current unemployment compensation benefits, social security or former employees other benefits or directors obligations for Company Employees (other than routine payments to be made in the normal course of any business and consistent with past practice). There are no pending claims, or claims reasonably expected or, to Company’s knowledge, threatened, against Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries subsidiaries under any workers compensation plan or policy or long-term or short-term disability plan or policy. Neither Company nor any of its subsidiaries has any obligations under COBRA with respect to any former or current Company Employees or qualifying beneficiaries thereunder. To the knowledge of Company and its subsidiaries, there are no controversies, including claims, complaints, charges, investigations, or proceedings pending or, to Company’s knowledge, reasonably expected or threatened between Company or any of its subsidiaries, on the one hand, and any of their respective ERISA Affiliates that has not been satisfied in fullCompany Employees, and no condition exists that presents a risk to on the Companiesother hand, their Subsidiaries or including without limitation any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) byactual or alleged harassment or discrimination based on race, on behalf national origin, age, sex, sexual orientation, religion, disability, or similar tortuous conduct, breach of contract, wrongful termination, defamation, intentional or against any negligent infliction of the Company Benefit Plans emotional distress, interference with contract or any trusts related thereto interference with actual or prospective economic disadvantage, which could controversies have or would reasonably be expected to result in an action, suit, proceeding, claim, arbitration, audit or investigation before any material liability of the Companies agency, court or any of their Subsidiaries andtribunal, to the knowledge of Seller, there is no existing condition, situation foreign or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plandomestic.
(d) Neither the execution or delivery Company nor any of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, its subsidiaries is a party to any director, employee collective bargaining agreement or independent contractor of the Companies other labor union contract nor does Company or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value its subsidiaries know of any benefit activities or compensation otherwise payable or required proceedings of any labor union to be provided to organize any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Employees.
(e) No labor organization dispute, walk out, strike, slowdown, hand billing, picketing, work stoppage (sympathetic or group otherwise), or other “concerted action” involving the Company Employees has occurred, is in progress or has been, to the knowledge of employees Company or its subsidiaries, threatened.
(f) Company and its subsidiaries have each provided all current and former Company Employees with all wages, benefits, relocation benefits, stock options, bonuses and incentives, and all other compensation, remuneration and benefits that became due and payable through the date hereof and has reimbursed all current and former Company Employees for all expenses incurred and due such individual.
(g) In the last five (5) years, no citation has been issued by the Occupational Safety and Health Administration (“OSHA”) or by a state or provincial occupational safety and health board or agency against Company or its subsidiaries and no notice of the Companies contest, claim, complaint, charge, investigation or other administrative enforcement proceeding involving Company or any of their Subsidiaries its subsidiaries has made a been filed or is pending demand for recognition or, to the knowledge of Company or certificationits subsidiaries, threatened against Company or its subsidiaries under OSHA or any provincial occupational safety and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board health board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and employment practices, terms and conditions of employment, wages and hours and law relating to occupational safety and health.
(fh) The Companies and their Subsidiaries do not maintain Neither Company nor any material Company Benefit Plans of its subsidiaries has taken any action that would constitute a “mass layoff,” “mass termination” or “plant closing” within the meaning of WARN or any similar state or provincial law or that would otherwise trigger notice requirements or liability under any federal, local, state or foreign plant closing notice or collective dismissal law.
(i) outside To Company’s knowledge, no Company Employees are in violation of any term of any employment contract, confidentiality agreement, patent disclosure agreement, noncompetition agreement, or any restrictive covenant to a former employer relating to the right of any such Company Employee to be employed by Company because of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside nature of the U.S.business conducted or presently proposed to be conducted by Company or any of its subsidiaries or to the use of trade secrets or proprietary information of others. No Company Employees have given notice to Company, nor is Company otherwise aware, that any such Company Employee intends to terminate his or her employment with Company or any subsidiary.
(j) Company and its subsidiaries have maintained and currently maintain adequate insurance as required by applicable law with respect to workers’ compensation claims and unemployment benefits claims. Company and its subsidiaries have paid or accrued all current assessments under workers’ compensation and unemployment legislation, and have not been subject to any special or penalty assessment under such legislation which has not been paid.
Appears in 1 contract
Samples: Merger Agreement (Saflink Corp)
Employee Matters. (ai) Section 3.11 of the Company Disclosure The collective agreement listed in Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(33.2(w) of the Disclosure Letter is the only collective agreement by which Corporation is bound by (the "Collective Agreement"). There are no material grievances or arbitration proceedings under the Collective Agreement or any other material labour or employment proceedings of any nature whatsoever. Corporation is not in material default with respect to any of the provisions contained in the Collective Agreement.
(ii) Except as set forth in Schedule 3.2(w) of the Disclosure Letter, Corporation is not a party to any written agreement pursuant to which either: (i) bonus, severance, notice of termination or pay in lieu of notice of termination, change of control or severance payments or any other payment of any nature whatsoever to any director, officer or Employee Retirement Income Security Act may be required to be paid, waived or renounced solely as a result of 1974the completion of the transactions contemplated by this Agreement; or (ii) any Employee or consultant who is bound by confidentiality, non-competition or non-solicitation covenants with Corporation is relieved thereof as amended a result of the completion of the transactions contemplated by this Agreement.
(“ERISA”)iii) Except as set forth in Schedule 3.2(w) of the Disclosure Letter: (i) there are no material pension, whether or not subject to ERISAretirement, and each material employment, consultingprofit sharing, bonus, incentive or savings, deferred compensation, vacationstock option, stock option purchase or other equity-based, severance, termination, retentionappreciation, change of control, profit-sharinghealth, fringe benefit life insurance, disability, sick pay, notice of termination or pay in lieu of notice of termination, severance pay (except as required by Law), group insurance or other similar planEmployee benefit plans, program, agreement programs or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, arrangements maintained or contributed to by any Company Corporation (other than government-sponsored employment insurance, workers' compensation, parental insurance, health insurance or any of its Subsidiaries pension plans) (each such plan, program or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein arrangement being referred to herein as the “Company a "Benefit Plans”Plan"). Section 3.11 of the Company Disclosure Schedule identifies ; (ii) each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects according to its terms and applicable Laws and there are no outstanding violations or defaults thereunder, in accordance with applicable lawany material respect, includingnor any material actions, but not limited toclaims or other proceedings pending or, ERISAto the knowledge of Sellers, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service threatened with respect to those provisions for which the remedial amendment period any Benefit Plan; (iii) no Benefit Plan is currently under Section 401(b) of the Code has not expired, a governmental investigation or audit and, to the knowledge of SellerSellers, there no such investigation or audit is not any reason why any such determination letter should be revokedthreatened; (iiiiv) with respect to each Company Benefit Plan that is subject covers only current or former employees of Corporation and their dependents and beneficiaries; (v) to Title IV the knowledge of Sellers, no promise or Section 302 commitment to increase benefits under any Benefit Plan or to adopt any additional Benefit Plan has been made except as required by Law; (vi) no Benefit Plan provides for the payment of ERISA post-employment or Section 412 post-retirement benefits; (vii) the transactions contemplated herein will not increase or 4971 accelerate any entitlement under any Benefit Plan, and (viii) there have been no withdrawals of surplus or contribution holiday, except as permitted by Law and the terms of the Code, Benefit Plans.
(Aiv) Except as set forth in Schedule 3.2(w) of the last day of the most recent plan year ended prior Disclosure Letter, Corporation is in compliance with and in good standing under all applicable Laws relating to the date hereofEmployees and their employment, as including provisions thereof relating to employment standards, wages, hours of work, vacation pay, overtime, notice of termination, pay in lieu of notice of termination, severance pay, mass layoff, human rights, workers' compensation, occupational health and safety, manpower training, pay equity, unfair labour practices, collective bargaining, equal opportunity or similar Laws, codes and policies related to employment obligations and has properly completed and filed all material reports and filings required by such Laws, except where failure to do so would not reasonably be expected to be material to the date hereof and as Business.
(v) There has not been, for a period of 12 consecutive months preceding the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term nor is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries andexistent or, to the knowledge of SellerSellers, there is threatened any strike, lockout, slowdown, picketing or work stoppage or any other labour disruption with respect to the Employees.
(vi) There are no existing conditionwritten personnel policies, situation rules or procedures applicable to employees of Corporation, other than those set of circumstances which could reasonably be expected to result forth in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1Schedule 3.2(w) of the Code Disclosure Letter, true and any award thereunder, in each case that is subject correct copies of which have been delivered to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodePurchaser.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 Set forth on Schedule 5.16(a) is a list of all employees of Seller who are employed at any of the Company Disclosure Operate Location Pharmacies or File-Transfer Locations on the date hereof (each, a “Business Employee”), including their full legal name, position, salary, bonus and other compensation information and, in the case of pharmacists or other licensed Persons, their relevant license numbers. Schedule sets 5.16(a) shall be updated as necessary to reflect new hires or other personnel changes occurring between the date hereof and the Applicable Closing. Except as set forth on Schedule 5.9, Seller is not bound by any oral or written employment agreement, consulting agreement, or deferred compensation agreement. To Seller’s knowledge, no Business Employee is a trueparty to any collective bargaining agreement. As related to the Business Employees, Seller is not and has never been subject to any affirmative action obligations under any Requirements of Law with respect to any current or former Business Employees, including Executive Order 11246, or is or has been a government contractor for purposes of any Requirements of Law with respect to the terms and conditions of employment of any current or former Business Employees.
(b) Set forth on Schedule 5.16(b) is a correct and complete and correct list of identifying each material “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consultingretention, bonusseverance or similar contract, plan, arrangement or policy and each other material plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, vacationvacation benefits, stock option insurance (including any self-insured arrangements), health or other equity-basedmedical benefits, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, employee assistance program, agreement disability or commitmentsick leave benefits, whether written workers’ compensation, supplemental unemployment benefits, severance or unwrittenretention benefits and post-employment or retirement benefits (including compensation, for the benefit of any employeepension, former employeehealth, director medical or former director of any Company life insurance benefits) which is maintained, administered or contributed to by Seller or any of its Subsidiaries entered into, maintained or contributed to by any Company Affiliates or any of its Subsidiaries professional employment organization or to by which any Company or of them are bound, and which covers any Business Employee as of its Subsidiaries is obligated to contribute, or with respect to which any Company or any the date hereof (all of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein the foregoing collectively referred to as the “Company Benefit Employee Plans”). Section 3.11 Copies of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant such Employee Plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto have been made available to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectivelyBuyer together with, if applicable, the “Assumed Plans”).
most recently filed annual report (b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, Form 5500 including, but not limited toif applicable, ERISASchedule B thereto) in connection with any such plan or trust. Each Employee Plan maintained or administered by Seller, or, to the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan knowledge of Seller, contributed to by Seller or maintained, administered or contributed to by a professional employment organization, that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code, Code has received a favorable determination letter from the Internal Revenue ServiceService that it is so qualified, and no fact or event has pending an application for occurred since the date of such determination from the Internal Revenue Service with respect letter that would reasonably be expected to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expiredadversely affect such qualification. Each Employee Plan maintained or administered by Seller, andor, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect contributed to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of by Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefitsmaintained, including, without limitation, death administered or medical benefits (whether or not insured), with respect contributed to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term a professional employment organization is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability now and has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied operated in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued respects in accordance with generally accepted accounting principles; (viii) neither its terms and the Companies nor any Requirements of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of Law, including ERISA or a material tax imposed pursuant to Section 4975 or 4976 of and the Code; and (ix) there is no pending. Seller has made all required contributions to the Employee Plans maintained, threatened administered or anticipated claim (other than routine claims for benefits) bycontributed to by Seller, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries andor, to the knowledge of Seller, there maintained, administered or contributed to by a professional employment organization, except for any contribution which is no existing condition, situation or set not yet due and payable. None of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that the Purchased Assets is a “nonqualified deferred compensation plan” within the meaning subject of any lien arising under Section 409A(d)(1302(f) of the Code and any award thereunder, in each case that is subject to ERISA or Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A412(n) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither Prior to employment or offer of a contract, Seller screens all Business Employees and independent contractors against the Companies nor any List of their Subsidiaries will, on Excluded Individuals and after Entities maintained by the Closing, have any liabilities or obligations Office of Inspector General for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for Department of Health & Human Services and the benefit of any individual whose principal place of employment is outside of Excluded Parties List System maintained by the U.S.General Services Administration.
Appears in 1 contract
Samples: Asset Purchase Agreement (Graymark Healthcare, Inc.)
Employee Matters. (a) Section 3.11 Schedule 4.1.13(a) lists as of the Company Disclosure Schedule sets forth a truedate hereof (and identifies the sponsor of) each material "Employee Pension Benefit Plan," as that term is defined in Section 3(2) of the ERISA, complete each material "Employee Welfare Benefit Plan," as that term is defined in Section 3(1) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans"), and correct list of each “other material retirement, pension, profit-sharing, money purchase, deferred compensation, incentive compensation, bonus, stock option, stock purchase, severance pay, unemployment benefit, vacation pay, savings, medical, dental, post-retirement medical, accident, disability, weekly income, salary continuation, health, life or other insurance, fringe benefit, or other employee benefit plan” , program, agreement, or arrangement maintained or contributed to by Sellers or their Affiliates in respect of or for the benefit of any employee who, upon the Closing, will be a Transferred Employee or former employee of Sellers, excluding any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of employees who, upon the Closing, will be Transferred Employees or former employees employed or formerly employed by Sellers outside of the United States, as of the date hereof (collectively, together with the ERISA Plans, referred to hereinafter as the "Plans.") Schedule 4.1.13
(a) also includes a list of (i) each material written employment, severance, termination or similar-type agreement between Sellers and their Affiliates and any employee who, upon the Closing, will be a Transferred Employee (the "Employment Agreements"), and (ii) each collective bargaining agreement between Sellers and their Affiliates and collective bargaining representatives for those employees who, upon the Closing, will be Transferred Employees (the "Labor Contracts"). Except for retention bonuses, if any, paid or payable in connection with the Closing of the transactions contemplated by this Agreement and except as otherwise set forth in Schedule 4.1.13
(a) the execution and delivery of this Agreement by Sellers and the performance of this Agreement by Sellers will not directly result now or at any time in the future in the payment to any employee who, upon the Closing, will be a Transferred Employee of any severance, termination, or similar payments or benefits.
(b) Except as set forth on Schedule 4.1.13(b):
(i) Neither Seller nor any of their Affi- liates, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof, has engaged in any transaction as a result of which Sellers could be subject to any material liability pursuant to Section 409 of ERISA or to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the Code; and
(ii) Since the effective date of ERISA, no material liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by Sellers (other than liability for premiums due to the PBGC), unless such liability has been, or prior to the Closing Date will be, satisfied in full.
(c) Except as set forth on Schedule 4.1.13(c), with respect to the ERISA Plans, other than those ERISA Plans identified on Schedule 4.1.13(d) as "multiemployer plans":
(i) the PBGC has not instituted proceedings to terminate any Plan that is subject to Title IV of ERISA;
(ii) none of the ERISA Plans has incurred an "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”Code), whether or not subject to ERISAwaived, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies last day of the most recent fiscal year of each Company Benefit Plan that Buyers shall assume pursuant of the ERISA Plans ended prior to Section 5.8(f) the date of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).Agreement;
(b) (iiii) Each of the Company Benefit ERISA Plans has been operated and administered in all material respects in accordance with its provisions and with all applicable law, including, but not limited to, ERISA, Laws;
(iv) Each of the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan ERISA Plans that is intended to be “"qualified” " within the meaning of Section 401(a) of the Code and, to the extent applicable, Section 401(k) of the Code, has received a favorable determination letter from been determined by the Internal Revenue ServiceIRS to be so qualified, or and nothing has pending an application for occurred since the date of the most recent such determination from (other than the Internal Revenue Service with respect effective date of certain amendments to those provisions for which the Code, the remedial amendment period under Section 401(b) of the Code for which has not yet expired, and, to ) that would adversely affect the knowledge qualified status of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SECERISA Plans; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); and
(v) There are no Controlled Group Liability has been incurred pending material claims against any of the ERISA Plans by any Company, any of its Subsidiaries employee or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring beneficiary covered under any such liability; ERISA Plan, or otherwise involving any such ERISA Plan (viother than routine claims for benefits and routine expenses).
(d) neither the Companies nor any of their Subsidiaries contributes Except as set forth on behalf of employees Schedule 4.1.13(d), none of the Companies or any of their Subsidiaries to ERISA Plans is a “"multiemployer pension plan” (," as such that term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries and with respect to each Company Benefit Plan any such multiemployer plans (as so defined) listed in respect of current Schedule 4.1.13(d), Sellers have not made or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Codeincurred, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement willwill not result in Sellers making or incurring, either alone a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in conjunction with any other eventSections 4203 and 4205 of ERISA that would result in the incurrence of a material liability by Sellers.
(e) Except as set forth on Schedule 4.1.13(e), as of the date hereof, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor none of the Companies employees who, upon the Closing, will be Transferred Employees are represented by a labor union or any of their Subsidiaries or to such individuals in the aggregatelabor organization, and (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided Sellers are not subject to any such directorcollective bargaining agreement covering any employee who, employee or independent contractorupon the Closing, (iii) result in the acceleration will be a Transferred Employee. As of the time of paymentdate hereof, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockoutswork stoppages or lockouts by or with respect to any employee who, arbitrations or grievancesupon the Closing, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and will be a Transferred Employee covered by collective bargaining agreements respecting employment and employment practicesagreements. Except as set forth on Schedule 4.1.13(e), terms and conditions to the Knowledge of employmentSellers, wages and hours and occupational safety and healthduring the twelve (12) months preceding the date of this Agreement, there have not been any union organizational campaigns by or directed at employees who, upon the Closing, will be Transferred Employees.
(f) The Companies Sellers will make available to Buyer, not less than five (5) days prior to the Closing Date, a list of those employees who, upon Closing, will be Transferred Employees and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside who are participating in or have participated in the health or dependent care reimbursement accounts of Sellers, together with the U.S. or (ii) for elections made prior to the benefit of any individual whose principal place of employment is outside of Closing Date with respect to such accounts through the U.S.Closing Date.
Appears in 1 contract
Employee Matters. (a) Except with respect to Mr. Mxxxxxx Xxxxx and Mr. Mxxxxxx Xxxxxx, Section 3.11 4.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct accurate list of: (a) any and all severance or employment agreements with any current or former member of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option management or other equity-based, severance, termination, retention, change employee providing services to or employed by Seller; (b) any and all severance programs or policies applicable to any such personnel; (c) any and all plans or arrangements relating to any current or former member of control, profit-sharing, fringe benefit management or other similar planemployee providing services to or employed by Seller containing change in control provisions; (d) any agreements, programplans, agreement policies or commitmentarrangements (including, whether written without limitation, collective bargaining agreements or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered intoconsulting agreements) established, maintained or contributed to by Seller for the benefit of any Company current or former employee providing services to or employed by Seller, including bonus, incentive compensation, stock ownership, stock option, stock appreciation, stock purchase, phantom stock, vacation, retirement, insurance, severance, supplemental unemployment, disability, death benefit, hospitalization, medical, workers compensation, pension, profit sharing or deferred compensation plans; or any employee welfare and employee pension benefit plans (as such terms are defined in Sections 3(1) and 3(2), respectively of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contributethe ERISA (singularly, or with respect to which any Company or any of its Subsidiaries has any liabilitya “Seller Employee Benefit Plan” and collectively, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Seller Employee Benefit Plans”). Section 3.11 of ) and (e) all plans that would be Seller Employee Benefit Plans, except that they have been terminated on or before the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)date hereof.
(b) Each Employee Benefit Plan maintained by Seller which is a “group health plan” under the Internal Revenue of 1986, as amended (i) Each of the Company Benefit Plans “Code”), has been operated and administered in all material respects in accordance compliance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) 4980B of the Code has (“COBRA”). Seller does not expired, and, contribute to the knowledge of Seller, there is not or have any reason why obligation to contribute to any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereofpension plan, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that , and Seller has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries incurred no Liability with respect to each Company Benefit Plan in respect of current any such multiemployer pension plan. Seller is not a party to any collective bargaining or prior plan years have been paid similar agreement, or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject obligated to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunderbargain, in each either case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payablelabor organization, or required bound by work rules or practices agreed to be provided, to with any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of employee association applicable to their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthemployees.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Asset Purchase Agreement (WQN, Inc.)
Employee Matters. (a) Section 3.11 2.20(a) of the Company Disclosure Schedule sets forth lists, with respect to the Company, any Subsidiary and any trade or business (whether or not incorporated) that is treated as a truesingle employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), complete and correct list (c), (m) or (o) of each the Code, (i) all “employee benefit planplans” as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject (ii) each loan to ERISAan employee, and each material employment, consulting, bonus, incentive or deferred compensation, vacation(iii) all stock option, stock option or other equity-basedpurchase, phantom stock, stock appreciation right, supplemental retirement, severance, terminationsabbatical, retentionmedical, change dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of controlthe Code), profit-dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, fringe benefit savings, severance, retirement, deferred compensation or other similar planincentive plans, programprograms or arrangements, agreement (v) all consulting, employment or commitmentexecutive compensation or severance agreements, whether written or unwrittenotherwise, as to which unsatisfied obligations of the Company remain for the benefit of of, or relating to, any employee, present or former employee, consultant, advisor or non-employee director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(fand (vi) all other fringe or employee benefit plans, programs or arrangements (all of this Agreement the foregoing described in clauses (including the LFG Deferred Compensation Plansi) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor through (v), collectively, the “Assumed Company Employee Plans”).
(b) (i) Each of the Any Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Employee Plan intended to be “qualified under Section 401(a) of the Code (i) (A) has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or (B) has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer and (ii) is so qualified” within . In addition, any trusts maintained by or on behalf of the meaning Company and intended to be exempt from federal income taxation under the Code are so exempt. There are no facts or circumstances that would reasonably be expected to cause the loss of such qualification or exemption with respect to any Company Employee Plan intended to be qualified under Section 401(a) of the Code, or the imposition of any Liability, penalty or Tax under ERISA or the Code. The Company does not sponsor or maintain any self-funded employee benefit plan, including any plan to which a stop-loss policy applies.
(c) The Company has received delivered to Acquiror a favorable determination letter from the Internal Revenue Servicetrue, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) correct and complete copy of each of the Code Company Employee Plans and related plan documents. Specifically, and without limitation, the Company (i) has not expiredprovided to Acquiror a true, andcorrect and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, to the knowledge of Sellerinsurance policies or Contracts, there is not employee booklets, summary plan descriptions and other authorizing documents, and any reason why any such determination letter should be revoked; material employee communications relating thereto), (iiiii) has, with respect to each Company Benefit Employee Plan that is subject to ERISA reporting requirements, provided to Acquiror true, correct and complete copies of the Form 5500 reports filed for the last three plan years, (iii) has provided to Acquiror a true, correct and complete copy of the most recent IRS determination or opinion letter issued with respect to each such Company Employee Plan, (iv) has provided to Acquiror all registration statements and prospectuses prepared in connection with each Company Employee Plan and (v) has provided to Acquiror true, correct and complete copies of each of the following: (A) all forms of offer letters, (B) all forms of employment agreements and severance agreements, (C) all forms of services agreements and agreements with current and former consultants and/or advisory board members, (D) all forms of confidentiality, non-competition or inventions agreements between current and former employees/consultants and the Company or any Subsidiary (and a true, correct and complete list of employees, consultants and/or others not subject thereto), (E) the most current management organization chart(s), (F) all forms of bonus plans and any form award agreement thereunder and (G) a schedule of bonus commitments made to employees of the Company.
(d) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law. No Company Employee Plan is covered by, and the Company has not incurred nor expects to incur any Liability under Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. Each Company Employee Plan, other than a Company Employee Plan described in Section 2.20(a)(i) or (iv), can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability to Acquiror (other than ordinary administrative expenses typically incurred in a termination event). There are no other entities that are or should be part of a controlled group that includes the Company pursuant to Code Sections 414(b), (Ac), (m), or (o).
(e) as of the last day of the most recent The Company does not currently maintain, sponsor, participate in or contribute to, nor has ever maintained, established, sponsored, participated in, or contributed to, any pension plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” (within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); ) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(vf) no Controlled Group Liability The Company is not a party to, nor has been made any contribution to or otherwise incurred by any Companyobligation under, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies ERISA or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation multiple employer plan” within the meaning of as such term is defined in Section 409A(d)(1413(c) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(cg) Neither the Companies nor The Company has no collective bargaining agreements with any of their Subsidiaries willits employees. There is no labor union organizing activity pending or, on to the Company’s Knowledge, threatened with respect to the Company. The Company has no Liability and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan a party to or a LFG Deferred Compensation Planbound by any currently effective employment Contract, deferred compensation arrangement, bonus plan, incentive plan, profit sharing plan, retirement agreement or other employee compensation plan or agreement. For To the avoidance Company’s Knowledge, no employee of doubtthe Company or any consultant or advisor with whom the Company has contracted is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, the LandAmerica Financial GroupCompany; and, Inc. Cash Balance Plan is to the Company’s Knowledge, the continued employment by the Company of its present employees, and the performance of the Company’s contracts with its independent contractors, will not an Assumed Planresult in any such violation. The Company has not received any notice alleging that any such violation has occurred.
(dh) Neither Other than as expressly contemplated by this Agreement, none of the execution or and delivery of this Agreement nor Agreement, the consummation of the transactions Merger or any other transaction contemplated by this Agreement hereby or any termination of employment or service or any other event in connection therewith or subsequent thereto will, either alone individually or in conjunction together or with any the occurrence of some other event, (i) result in any material payment (including severance, unemployment compensation, golden parachute, bonus or benefit otherwise) becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregatePerson, (ii) materially increase the amount or value of otherwise enhance any benefit or compensation benefits otherwise payable or required to be provided to any such director, employee or independent contractorby the Company, (iii) result in the acceleration of the time of payment, vesting, exercisability payment or funding vesting of any such benefit or compensationbenefits, except as required under Section 411(d)(3) of the Code, (iv) increase the amount of compensation due to any Person, (v) result in the forgiveness in whole or in part of any material outstanding loans made by the Company to any Person, (vi) require any contributions or payments to fund any obligations under any Company Employee Plan or (vii) create any limitation or restriction on the right of the Companies or any of their Subsidiaries Company to amendmerge, merge amend or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.Employee Plan.
(ei) No labor organization or group of employees of All Company Employee Plans may be terminated by the Companies or any of their Subsidiaries has made Company without Liability other than ordinary administrative expenses typically incurred in a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries termination event.
(j) The Company is in compliance in all material respects with all currently applicable laws and collective bargaining agreements Legal Requirements respecting employment and employment practicesemployment, discrimination in employment, terms and conditions of employment, wages worker classification (including the proper classification of workers as independent contractors, consultants and advisors), wages, hours and occupational safety and healthhealth and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice.
(fk) The Companies Company is not a party to or bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company and their Subsidiaries do the Company does not maintain have any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company. To the Company’s Knowledge, there are no activities or proceedings of any labor union to organize the Company’s employees. There is no labor dispute, strike or work stoppage against the Company pending or, to the Company’s Knowledge, threatened which may interfere with the respective business activities of the Company.
(l) The employment of the employees of the Company is “at will” and the Company does not have any obligation to provide any particular form or period of notice prior to terminating the employment of any of its employees, except as set forth on Section 2.20(l) of the Company Disclosure Schedule. The Company does not have a present intention to terminate the employment of any officer, key employee or group of employees (except for resignations of directors and officers required by Section 1.4(a)(iii) of the Agreement).
(m) The current employees of the Company are authorized and have appropriate documentation to work in the United States in accordance with applicable Law. Section 2.20(m) of the Company Disclosure Schedule sets forth a true, correct and complete list of all employees of the Company who to the Company’s Knowledge are not United States citizens or permanent residents and any work authorizations applicable to each employee. Except for the work authorizations specified in Section 2.20(m) of the Company Disclosure Schedule opposite the employee’s name, to the Company’s Knowledge none of the employees required to be so listed requires authorization from any Governmental Authority to be employed in his or her current position by the Company.
(n) Schedule 2.21(n)(i) of the Company Disclosure Schedule sets forth a true, correct and complete list of the names, positions and rates of compensation of all officers, directors and employees of the Company, showing each such individual’s name, position, annual remuneration, status as exempt/non-exempt, bonuses and fringe benefits for the current fiscal year and the most recently completed fiscal year, and the notice or termination provisions applicable to the services provided by such individual. Schedule 2.20(n)(ii) of the Company Disclosure Schedule sets forth the additional following information for each of its international employees: city/country of employment, date of hire, manager’s name and work location, date of birth, any material special circumstances (including pregnancy, disability or military service), whether the employee was recruited from a previous employer, and the notice or termination provisions applicable to the services provided by such individual. Schedule 2.20(n)(iii) of the Company Benefit Plans Disclosure Schedule sets forth a true, correct and complete list of all of its consultants, advisory board members and independent contractors and, for each, (i) outside of the U.S. or such individual’s compensation, (ii) for such individual’s initial date of engagement, (iii) whether such engagement has been terminated by written notice by either party thereto and (iv) the benefit notice or termination provisions applicable to the services provided by such individual.
(o) Each Company Employee Plan complies, in both form and operation, in all material respects, with its terms, ERISA, if applicable and the Code, if applicable, and no condition exists or event has occurred with respect to any such plan which would result in the incurrence by the Company or Acquiror of any individual whose principal place Liability, fine or penalty.
(p) Schedule 2.20(p) of the Company Disclosure Schedule sets forth each non-competition agreement and non-solicitation agreement that binds any current or former employee or contractor of the Company (other than those agreements entered into with newly hired employees of the Company in the ordinary course of business and consistent with past practice).
(q) The Company has not, and to the knowledge of Company, no other Person has, (i) entered into any Contract that obligates or purports to obligate Acquiror to make an offer of employment is outside to any present or former employee or consultant of the U.S.Company and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former employee or consultant of the Company of any terms or conditions of employment with Acquiror following the Closing.
(r) The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). There are no pending claims against the Company under any workers compensation plan or policy or for long term disability. The Company does not have any obligations under COBRA with respect to any former employees or qualifying beneficiaries thereunder, except for obligations that are not material in amount. There are no controversies pending or, to the knowledge of the Company, threatened, between the Company and any of its employees, which controversies have or would reasonably be expected to result in Liability or a legal proceeding before any Governmental Entity.
(s) The Company is in compliance in all material respects with the Worker Adjustment Retraining Notification Act of 1988, as amended (the “WARN Act”), or any similar state or local law. In the past two years, (i) the Company has not effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business, (ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of the Company and (iii) the Company has not been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, local or foreign law or regulation. The Company has not caused any of its employees to suffer an “employment loss” (as defined in the WARN Act) during the 90-day period immediately preceding the Agreement Date.
Appears in 1 contract
Samples: Merger Agreement (Proofpoint Inc)
Employee Matters. (a) Section 3.11 4.20 of the Company Citizens Disclosure Schedule sets forth a true, complete and correct list of each “material "employee benefit plan” " as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, commitment for the benefit of any employee, former employee, director or former director of any Company Citizens or any of its Subsidiaries Citizens Subsidiary entered into, maintained or contributed to by any Company Citizens or any of its Subsidiaries Citizens Subsidiary or to which any Company Citizens or any of its Subsidiaries is obligated to contribute, or Citizens Subsidiary may have any liability with respect to which any Company current or former employees or directors of Citizens or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof Citizens Subsidiary (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”"CITIZENS BENEFIT PLANS").
(b) With respect to each Citizens Benefit Plan, Citizens has made available to Republic true, complete and correct copies of the following (as applicable): (i) Each the written document evidencing such Citizens Benefit Plan or, with respect to any such plan that is not in writing, a written description thereof, (ii) the summary plan description; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter from the IRS; (v) the most recent Form 5500 required to have been filed with the IRS, including all schedules thereto; (vi) any related trust agreements, insurance contracts or documents of any other funding arrangements; (vii) any written communications to or from the IRS or any office or representative of the Company Department of Labor relating to any compliance issues in respect of any such Citizens Benefit Plans Plan and (viii) all amendments, modifications or supplements to any such document.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Citizens, (i) Citizens and each Citizens Subsidiary has been operated and administered each Citizens Benefit Plan in compliance with all material respects in accordance with applicable law, including, but not limited to, ERISA, laws and the Code and in terms of each case the regulations thereundersuch plan; (ii) the terms of each Company Citizens Benefit Plan are in compliance with all applicable laws; (iii) each Citizens Benefit Plan that is intended to be “"qualified” within the meaning of " under Section 401(a) 401 of the Code, Code has received a favorable determination letter from the Internal Revenue Service, or has pending an application for IRS to such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, effect and, to the knowledge of SellerCitizens, there is not any reason why any no fact, circumstance or event has occurred or exists since the date of such determination letter should that would reasonably be revokedexpected to adversely affect the qualified status of any such Citizens Benefit Plan; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) there are no Company Benefit Plan provides material benefitspending or, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any knowledge of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pendingCitizens, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Citizens Benefit Plans or any trusts related thereto assets thereof (other than routine claims for benefits). All contributions, premiums and other payments required to be made with respect to any Citizens Benefit Plan have been made on or before their due dates under applicable law and the terms of such Citizens Benefit Plan, and with respect to any such contributions, premiums or other payments required to be made with respect to any Citizens Benefit Plan that are not yet due, to the extent required by GAAP, adequate reserves are reflected on the consolidated balance sheet of Citizens included in the Quarterly Report on Form 10-Q for the quarter ended March 31, 2006 (including any notes thereto) or liability therefor was incurred in the ordinary course of business consistent with past practice since March 31, 2006.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Citizens, with respect to the Citizens Benefits Plans, neither Citizens nor any Citizens Subsidiary has incurred or reasonably expects to incur, either directly or indirectly (including as a result of an indemnification or joint and several liability obligation), any liability under Title I or IV of ERISA or the penalty, excise tax or joint and several liability provisions of the Code or any foreign law or regulation relating to employee benefit plans, and, to the knowledge of Citizens, no event, transaction or condition has occurred, exists or is reasonably expected to occur which could reasonably be expected to result in any material such liability of the Companies to Citizens or any of their Subsidiaries and, Citizens Subsidiary. With respect to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company each Citizens Benefit Plan that which is a “nonqualified deferred compensation an "employee pension benefit plan” " (within the meaning of Section 409A(d)(13(2) of ERISA): (i) no such plan is a "multiemployer plan" (within the meaning of Section 3(37) of ERISA) or a "multiple employer plan" (within the meaning of Section 413(c) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code), and (B)(1ii) no "reportable event" (as defined in Section 4043 of ERISA) has occurred with respect to any such plan within the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Codepast 12 months.
(ce) Neither Except as set forth in Section 4.20(e) of the Companies nor any of their Subsidiaries willCitizens Disclosure Schedule, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies Citizens or any of their Subsidiaries or to such individuals in the aggregateits Subsidiaries, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vestingforgiveness of indebtedness, exercisability vesting or funding of any such benefit or compensation, (iv) result in any material limitation on limit the right of the Companies or any of their Subsidiaries ability to amend, merge terminate or terminate receive a reversion of assets from any Company Citizens Benefit Plan or related trust, trust or (v) result in any amount failing to be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement deductible by reason of excise Taxes under Section 4999 280G of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthCode.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (iExcept as set forth in Section 4.20(f) outside of the U.S. Citizens Disclosure Schedule, no payment made or (ii) for the benefit to be made in respect of any individual whose principal place employee or former employee of Citizens or any of its Subsidiaries is or will be nondeductible by reason of Section 162(m) of the Code.
(g) Neither Citizens nor any of its Subsidiaries is a party to or bound by any labor or collective bargaining agreement and there are no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit with respect to, or otherwise attempting to represent, any of the employees of Citizens or any of its Subsidiaries. There are no labor related controversies, strikes, slowdowns, walkouts or other work stoppages pending or, to the knowledge of Citizens, threatened and neither Citizens nor any of its Subsidiaries has experienced any such labor related controversy, strike, slowdown, walkout or other work stoppage within the past three years. Neither Citizens nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to employees or employment practices. Each of Citizens and its Subsidiaries are in compliance with all applicable laws, statutes, orders, rules, regulations, policies or guidelines of any Governmental Entity relating to labor, employment, termination of employment is outside of the U.S.or similar matters and have not engaged in any unfair labor practices or similar prohibited practices.
Appears in 1 contract
Employee Matters. (a) Section 3.11 4.10(a) of the Company Disclosure Schedule sets forth Letter contains a true, complete and correct list accurate list, as of each the date hereof, of all “employee benefit planplans” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each all other material employmentmedical, consultingdental, bonuslife insurance, equity, bonus or other incentive or compensation, disability, salary continuation, severance, retention, retirement, pension, deferred compensation, vacation, stock option sick pay or paid time off plans or policies, and any other equity-basedmaterial plans, severanceagreements (including material employment, terminationconsulting and collective bargaining agreements) policies, retention, change of control, profit-sharing, fringe benefit trust funds or any other similar plan, program, agreement or commitment, arrangements (whether written or unwritten, insured or self-insured) established, sponsored, maintained or contributed to (or with respect to which any obligation to contribute has been undertaken) by the Company, any of its Subsidiaries or any ERISA Affiliate for the benefit of any employee, current or former employee, director or former director other service provider of any Company or any of its Subsidiaries entered into, maintained or contributed to by any the Company or any of its Subsidiaries or to which any their beneficiaries (each, a “Company or any of its Subsidiaries is obligated to contributeEmployee”), or with respect to which any Company or any of its Subsidiaries has any liabilitythe Company, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary ERISA Affiliate has or dependent thereof may have any material Liability (contingent or actual) (collectively, together with any such plansagreements that are not material, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Employee Plans”).
(b) As of the date hereof, the Company has made available to Parent: (i) Each copies of all material documents setting forth the terms of each Company Employee Plan (other than documents relating to agreements that are not material, whether individually or in the aggregate), including all amendments thereto and all related trust documents; (ii) the three (3) most recent annual reports (Form Series 5500), if any, required under ERISA or the Code in connection with each Company Employee Plan; (iii) the three (3) most recent actuarial reports (if any) for each Company Employee Plan; (iv) the most recent summary plan description, if any, required under ERISA with respect to each Company Employee Plan; (v) all material written contracts, instruments or agreements relating to each Company Employee Plan (other than a Company Employee Plan that is not material), including administrative service agreements and group insurance contracts (if any) with respect to each such Company Employee Plan; (vi) the most recent IRS determination or opinion letter (if any) issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code; and (vii) any and all filings pending or made within the past three (3) years under the IRS' Employee Plans Compliance Resolution System (“EPCRS”) or any of its predecessors or the Department of Labor Delinquent Filer Program or other government correction program with respect to any Company Employee Plan, and any documents relating to the self-correction of any Company Employee Plan made within the past three (3) years under EPCRS or other government correction program.
(c) All Company Employee Plans (other than agreements that are not individually or in the aggregate material) comply in form and have been maintained and administered in all material respects in compliance with their terms and applicable Laws, including the provisions of ERISA and the Code. With respect to each Company Employee Plan, (i) each such plan that is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and is the subject of a favorable determination or opinion letter as to its qualification, and nothing has occurred, whether by action or failure to act, that caused or, to the Knowledge of the Company, would reasonably be expected to cause the loss of such qualification; (ii) all contributions required under the terms of each Company Employee Plan (including any collective bargaining agreement or other agreement) or under applicable Law have been made within the time required by such Laws, the terms of such Company Employee Plan and GAAP, as applicable; (iii) there have been no “prohibited transactions” (as described in Section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA), and, to the Knowledge of the Company, none are reasonably expected to occur, with respect to any Company Employee Plan (other than those for which an administrative, statutory or regulatory exemption is available); (iv) there are no material inquiries, proceedings, claims or suits pending or, to the Knowledge of the Company, threatened in writing against any Company Employee Plan (other than claims for benefits and appeals of such claims), or, with respect to their capacities in relation to the Company Employee Plans only, against any trustee or fiduciaries of the Company Benefit Employee Plans, any employee, director or other service provider of the Company or its Subsidiaries (whether current or former or retired), or any of the assets of any trust of any of the Company Employee Plans; (v) except as set forth on Section 4.10(c)(v) of the Company Disclosure Letter, no Company Employee Plan is under, and neither the Company nor any of its Subsidiaries has received any notice of, an audit or investigation by the Internal Revenue Service, Department of Labor or any other Governmental Entity, and no such audit completed in the last two (2) years, if any, has resulted in the imposition of any material Tax or penalty; (vi) with respect to each Company Employee Plan that is funded mostly or partially through an insurance policy, none of the Company, its Subsidiaries or any ERISA Affiliate currently has any material liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent material liability arising wholly or partially out of events occurring on or before the date of this Agreement or is reasonably expected to have such liability with respect to periods through the Effective Time; and (vii) there are no loans by the Company or any of its Subsidiaries to any of their respective executive officers or directors, except to the extent such loans were made consistent with the terms of a plan that is intended to be a “qualified plan” for purposes of Section 401(a) of the Code.
(d) Except as set forth on Section 4.10(d) of the Company Disclosure Letter, none of the Company, any of its Subsidiaries or any ERISA Affiliate, or any of their predecessors, contributes (or is obligated to contribute) to a “multiemployer plan” (as such term is defined in ERISA Section 3(37)), a “defined benefit plan” (as such term is defined in ERISA Section 3(35)) or any “single-employer plan” (as such term is defined in ERISA Section 4001(a)(15)) and, during the six-year period ending on the Effective Time, none of the Company, any of its Subsidiaries or any ERISA Affiliate, or any of their predecessors, has contributed or been obligated to contribute to, or has had any material liabilities (contingent or otherwise) under, such a plan.
(e) Except as otherwise provided in this Agreement, the consummation of the transactions contemplated herein, alone or in combination with any other event, will not give rise to any material liability, whether individually or in the aggregate, under any Company Employee Plan, including (i) entitling any Company Employee to severance pay or any other payment upon termination or (ii) accelerating the time of payment or vesting of, or increase the amount of, compensation or benefits due to any such individual. No amount payable (whether in cash or property or the vesting of property) as a result of the consummation of the Merger to any employee, director or other service provider of the Company or any of its Subsidiaries under any Company Employee Plan or otherwise would not be deductible by reason of Section 162(m) or Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither the Company nor any of its Subsidiaries has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The Company has provided materially correct estimates (based on the assumptions stated in such estimates) of the following to Parent: (A) the maximum amount that could be paid to each individual who could reasonably be a “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G-1) entitled to receive a “parachute payment” (as such term is defined in Treasury Regulations Section 1.280G-1) in connection with the Merger under all employment, severance and termination agreements currently in effect and under all other compensation arrangements and Company Employee Plans currently in effect, assuming that the individual's employment with the Company or its Subsidiaries is terminated immediately following the Effective Time, (B) the “base amount” (as defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement, and (C) the vesting schedule (including any acceleration provisions with respect thereto) for each outstanding Company Stock Right and Company Stock Award or other equity award held by each such individual as of the date of this Agreement.
(f) Neither the Company nor any of its Subsidiaries has unfunded liabilities pursuant to any Company Employee Plan that is not intended to be qualified under Section 401(a) of the Code that are not fully reflected on the Company's financial statements. Each Company Employee Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1and, 2005if any amendments were reasonably necessary, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on has been timely amended to comply with Section 409A of the Code.
(cg) No Taxes have been incurred by any Company Employee Plan and no events have taken place that would subject any Company Employee Plan to any Tax under Section 4980B of the Code or under Section 4980D of the Code. All Company Employee Plans have been operated in all material respects in compliance, including documental compliance, with all requirements applicable to each individual plan under the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010) and under Part 7 of ERISA. Neither the Companies Company nor any ERISA Affiliate has contributed to a nonconforming group health plan (as defined in Section 5000(c) of the Code) and no ERISA Affiliate has incurred a Tax under Section 5000(a) of the Code which is or could reasonably be expected to become a Liability of the Company or an ERISA Affiliate.
(h) Other than such continuation of benefit coverage under group health plans as is required by applicable Law, no Company Employee Plan provides and neither the Company nor any of their its Subsidiaries will, on maintains any other arrangement or plans providing for post-retirement health and welfare benefits for any current or former Company Employee or any beneficiary of any such employee after the Closingemployee's termination of employment.
(i) None of the Company or any of its Subsidiaries, have or, to the Knowledge of the Company, any liabilities employee, director or obligations for other service provider of the Company or any of its Subsidiaries, has made any promises or commitments to create any additional Company Benefit Plan which is not an Assumed Employee Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed to modify or change in any material way any existing Company Employee Plan.
(dj) Neither the execution Except as would not be expected to give rise to a material liability, individually or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (i) any individual who performs services for the Company or any of its Subsidiaries and who is not treated as an employee for federal income Tax purposes by the Company or its Subsidiaries is not an employee under applicable federal Law or Company Employee Plan purposes; (ii) materially increase the amount Company and its Subsidiaries have no liability by reason of an individual who performs or value of performed services for the Company or its Subsidiaries in any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, capacity being improperly excluded from participating in a Company Employee Plan; and (iii) result in the acceleration each employee of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is has been properly classified as “exempt” or “non-exempt” under applicable Law.
(k) Each Company Stock Right (i) has an exercise or base price at least equal to the fair market value of Company Common Stock on a date no earlier than the date of the corporate action authorizing the grant, (ii) no Company Stock Right has had its exercise date or grant date delayed or “back-dated” and (iii) all Company Stock Rights have been issued in compliance in all material respects with all applicable laws Laws and collective bargaining agreements respecting employment and employment practices, terms and conditions of employment, wages and hours and occupational safety and healthproperly accounted for in all material respects in accordance with GAAP.
(fl) The Companies and their Subsidiaries do not maintain any material Except as set forth on Section 4.10(l) of the Company Benefit Plans (i) Disclosure Letter, no Company Employee Plan is mandated by a government other than the United States or is subject to the Laws of a jurisdiction outside of the U.S. United States. With respect to each Company Employee Plan that is mandated by a government other than the United States or (ii) for subject to the benefit Laws of any individual whose principal place of employment is a jurisdiction outside of the U.S.United States (each, a “Foreign Company Plan”), the fair market value of the assets of each funded Foreign Company Plan, the liability of each insurer for any Foreign Company Plan funded through insurance or the book reserve established for any Foreign Company Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in such Foreign Company Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Company Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations.
Appears in 1 contract
Employee Matters. (a) Section 3.11 Except as described in Schedule 3.10(a), Seller is not, in respect of any Transferred Employees, a party to or bound as of the Company Disclosure date hereof by any written or oral:
(i) collective bargaining agreements; employment agreements; consulting, advisory, or service agreements; deferred compensation agreements; confidentiality agreements; noncompetition agreements; termination agreements; severance agreements; retention agreements; change of control agreements; or similar agreements or policies;
(ii) stock option, stock appreciation, restricted stock, phantom stock, stock purchase, bonus, or other incentive plans or agreements.
(b) Except as described in Schedule sets forth a true3.10(b), complete Seller, and correct list each ERISA Affiliate of each “Seller, does not maintain, and is not required to contribute to, is not subject to any liability with respect to, and has not maintained, any ‘employee benefit plan” ’, as such term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employmentnor any severance pay plan, consulting, bonus, incentive or deferred compensation, vacationstock purchase plan, stock option or other equity-based, severance, termination, retention, change of control, profit-sharingplan, fringe benefit or other similar plan, programbonus or incentive compensation plan, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained other deferred compensation or contributed to by any Company post-retirement insurance plan or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise arrangement (including any liability arising out of such plan or arrangement contained in an indemnification, guarantee, hold harmless individual employment or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”consulting contract). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered plans described in all material respects in accordance with applicable law, including, but not limited to, ERISA, Schedule 3.10(b) (the Code and in each case the regulations thereunder; (ii“Plans”) each Company Benefit Plan which is intended to be “qualified” within the meaning of qualify under Section 401(a401 (a) of the CodeCode is tax-qualified, has received a favorable determination letter from the Internal Revenue ServiceIRS as to its qualification under the Code that takes into account the changes required under the Tax Reform Act of 1986, or has pending an application for and as to the tax exemption of each trust forming a part of any such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period Plan under Section 401(b501(a) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 Code. Each of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of servicePlans, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined Multiemployer Plans, complies in Section 3(2) of ERISA); (v) no Controlled Group Liability form in all material respects and has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied administered in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued respects in accordance with generally accepted accounting principles; (viii) neither all applicable requirements of law and regulations thereunder. No determination letter with regard to the Companies nor any of their Subsidiaries Plans has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries been revoked and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in reason for such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within revocation.
(c) Seller and each affiliated entity has complied with the meaning health care continuation requirements of Section 409A(d)(1601, et seq., of ERISA and Section 4980B of the Code with respect to the Employees, and Seller will continue to maintain the Plans that are “group health plans” as defined in Section 4980B(g) of the Code and Section 607 of ERISA for the required coverage period.
(d) Except as described in Schedule 3.10(d), there is no pending or, to the knowledge of Seller, threatened claim which alleges any award thereunderviolation of any Plan or any requirement of applicable law and regulations thereunder (i) by or on behalf of any Plans or fiduciaries of any Plans or (ii) by any employee or any participant or beneficiary against any Plan. Without limiting the generality of the foregoing, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not give rise to or subsequently result in each case that is subject any obligation or liability (with respect to accrued benefits or otherwise) on the part of Buyer, or any affiliate of Buyer, or any of the officers, directors, or employees of any Buyer, to any Transferred Employee or any employee or former employee of the Business, or otherwise under Sections 404, 406, 409, 502, 4069, 4201, et seq of ERISA or Section 409A 4975 of the Code. Furthermore, Seller has been operated complied with, shall be responsible for and have the obligation for satisfying any notice requirements in compliance in all material respects with Section 409A respect of events occurring, services rendered or compensation paid on or prior to the Closing Date which are required by ERISA and the Code since January 1regarding its Plans, 2005including notices required by Sections 204(h), based upon a good faith, reasonable interpretation of (A) Section 409A of the Code606, and (B)(1) the proposed 4043 of ERISA and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 4980B of the Code.
(ce) Neither All contributions required to have been made by Seller and each ERISA Affiliate to any Plan under the Companies nor terms of any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed such Plan or a LFG Deferred Compensation pursuant to any applicable collective bargaining agreement or requirement of law or any regulations thereunder have been made within the time (whichever is earliest) prescribed by such Plan. For the avoidance , collective bargaining agreement, or requirement of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Planlaw or any regulations thereunder.
(df) Neither the execution or delivery of this Agreement nor Except as specifically described in Schedule 3.10(f), the consummation of the transactions contemplated by this Agreement willAgreement, either alone or in conjunction with any other eventsubsequent events, will not (i) entitle any Transferred Employee to severance pay, unemployment compensation, or any similar payment, or (ii) accelerate the time of payment or vesting or increase the amount of any compensation or benefits due to any such Transferred Employee.
(g) Except as described in Schedule 3.10(g), no Transferred Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Business, including, without limitation, death, life insurance, or medical benefits (whether or not insured), other than (i) coverage mandated by Section 4980B of the Code, or (ii) retirement benefits payable under any Plan qualified under Section 401 (a) of the Code. Except as otherwise provided in Schedule 3.10(g) of this Agreement, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not result at any time in any material payment obligation or benefit becoming due liability under any of the Plans (with respect to accrued benefits or payableotherwise) of Buyer to any Business Employee, any employee or former employee of any ERISA Affiliate, any of the Plans, any plan of any type maintained by any ERISA Affiliate or the Pension Benefit Guaranty Corporation (the “PBGC”). No amendment to, termination of, or required withdrawal from any Multiemployer Plan or any plans subject to be providedTitle IV of ERISA or Section 302(c)(11) of ERISA at any time before, on or after the Closing Date by Seller or any ERISA Affiliate will subject Buyer to any liability to any such plan, the PBGC or the IRS, to any directorBusiness Employee, to any employee or independent contractor former employee of any ERISA Affiliate, or to any other Person. None of the Companies Purchased Assets are subject to any Liens arising under Sections 302(f) of ERISA or Section 412(n) of the Code.
(h) Schedule 5.5(a) separately lists each Business Employee whose salary exceeds $20,000 per year and the position, title, remuneration (including any scheduled salary or remuneration increases), and date of employment of such Business Employee. Except as set forth in Schedule 3.10(h), Seller has complied in all material respects with all requirements of law or any regulations thereunder pertaining to the employment of their Subsidiaries employees, including, without limitation, those relating to prices, wages, hours, employment practices, sexual harassment, discrimination, labor relations, collective bargaining, and operation of its business and is not liable for any arrears of wages or any Tax or penalty for failure to such individuals in comply with any of the aggregate, (ii) materially increase the amount foregoing. Neither Seller nor any Buyer is or value of will be liable for any benefit retroactive workers’ compensation insurance premium or retroactive unemployment compensation otherwise payable experience rating or required to be provided charge relating to any such directorperiod of time prior to the Closing Date.
(i) Except as set forth on Schedule 3.10(i), employee or independent contractorat the present time and during the past three years, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code no unfair labor practice complaint or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries charge against Seller has made a pending demand for recognition or certificationbeen brought before, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filedby, with the National Labor Relations Board or any other government agency or any court; (B) there has not occurred or been threatened any labor relations tribunal or authority. There are no material organizing activitiesstrike, strikesdispute, work stoppagespicketing, slowdownsslowdown, lockouts, arbitrations or grievancesstoppage, or other material similar labor disputes pending or threatened activity against or involving Seller; (C) Seller is not and has not been party to any collective bargaining agreement and there are no labor unions or other organizations representing, purporting to represent, or attempting to represent any employee; (D) Seller is not and has not been a party to, or affected by or threatened with, any union organizing or election activity or any dispute or controversy with a union involving the Employees; (E) Seller is not and has not been affected by any dispute or controversy with a union or with respect to unionization or collective bargaining involving any supplier or customer of Seller (F) Seller has not experienced any material labor difficulty; and (G) Seller has no knowledge that Seller’s relations with its Employees are other than satisfactory. To the knowledge of Seller, no management or key employee of the Companies Business intends to terminate employment with Seller or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthBusiness.
(fj) The Companies Seller maintains policies on the proper classification for all employees, leased employees, consultants and their Subsidiaries do independent contracts, for all purposes (including, without limitation, for all Tax purposes and for purposes of determining eligibility to participate in any Plans.)
(k) Except as set forth in Schedule 3.10(k), Buyer will not maintain be obligated to make any material Company Benefit Plans payments that, separately or in the aggregate (iwhether in connection with any termination of employment or otherwise) outside would result in an “excess parachute payment” within the meaning of section 280G of the U.S. or (ii) for the benefit of Code with respect to any individual whose principal place of employment is outside of the U.S.Transferred Employee.
Appears in 1 contract
Employee Matters. (a) Section 3.11 Except as set forth on Schedule 2.19, neither the Company nor any of its Subsidiaries has in effect any oral or written consulting agreements or employment agreements in excess of $50,000 or labor or collective bargaining agreements, written or oral. The Company and the Principal Shareholders have no knowledge that any of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) officers or other key employees of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed presently intends to by any terminate his employment. The Company or any and each of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and collective bargaining agreements respecting employment and regulations relating to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours hours. Schedule 2.19 lists and occupational safety identifies: each "employee pension benefit plan" (as such term is defined in section 3(2) of ERISA); each "employee welfare benefit plan" (as such term is defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and health.
all of the regulations promulgated thereunder (f) The Companies "ERISA")); each stock purchase, stock option, stock bonus, restricted stock, deferred compensation, severance pay, incentive compensation, salary continuation, vacation, sick pay, or disability plan, policy, or arrangement; each material fringe benefit plan, policy, arrangement, or practice; and their each employment, separation, termination, stay-with-bonus, change-of-control, retention, or similar contract, agreement, policy, or understanding, which is maintained or contributed to by the Company or any ERISA Affiliate for, on behalf of, or with respect to, any current or former employee, officer, director, or dependent thereof, to which the Company or any of its Subsidiaries is a party, or for which the Company has any liability or contingent liability (individually a "Plan" and collectively the "Plans"). True and complete copies of all Plans and all amendments thereto (and where written Plan documents do not maintain exist, detailed written summaries thereof) have been furnished to the Purchaser. For purposes of this Agreement, "ERISA Affiliate" means, with respect to Title IV of ERISA, any material trade or business, whether or not incorporated, that together with the Company, would be deemed to be a "single employer" within the meaning of Section 4001 of ERISA, and, with respect to the Code, any member of any group that, together with the Company Benefit Plans (i) outside or any of its Subsidiaries, is treated as a "single employer" under section 414 of the U.S. Code. Each Plan complies and has been administered in form and operation with all material requirements of law and regulation applicable thereto. The Company and the ERISA Affiliates have performed all of their obligations under all such Plans, except for any obligations which would not have a Material Adverse Effect. There have been no acts or (iiomissions which have given rise to, or which could give rise to, any penalty, tax, or fine under sections 409, 502(c) or 502(i) of ERISA, or sections 4975 or 4976 of the Code, for which the benefit Company and each of its Subsidiaries may be liable. None of the assets of any individual whose principal place Plan are invested in any employer securities, employer real property, or any insurance contract of employment is outside any company subject to rehabilitation proceedings. All contributions required with respect to any Plan for all periods ending prior to the Closing (including periods from the first day of the U.S.current plan year to the Closing) will be completely and timely made prior to the Closing by the Company or the ERISA Affiliates. All required reports and descriptions of each Plan (including IRS Form 5500 Annual Reports, summary annual reports, and summary plan descriptions) have been timely filed and distributed. None of the Company or any ERISA Affiliate has any plan or commitment to establish any additional Plans or to amend any existing Plan, other than as may be required by applicable statute. Other than coverage mandated by applicable statute, none of the Company or any ERISA Affiliate is under any obligation or liability to provide medical benefits or death benefits (including through insurance) to retirees or former employees, officers or directors of the Company or any ERISA Affiliate or to their respective dependents. The consummations of the transactions contemplated hereby will not entitle any employee of the Company to receive any bonus, severance or other payment.
Appears in 1 contract
Samples: Securities Purchase and Redemption Agreement (Sybari Software, Inc.)
Employee Matters. (a) Schedule 9.1.17(a) lists (and identifies the sponsor of) each material Employee Pension Benefit Plan," as that term is defined in Section 3.11 3(2) of ERISA, each material "Employee Welfare Benefit Plan," as that term is defined in Section 3(l) of ERISA (such plans being hereinafter referred to collectively as the Company Disclosure Schedule sets forth 'ERISA Plans), and each other material retirement, pension, profit-sharing, money purchase, deferred compensation, incentive compensation, bonus, stock option, stock purchase, severance pay, unemployment benefit, vacation pay, savings, medical, dental, post-retirement medical, accident, disability, weekly income, salary continuation, health, life or other insurance, fringe benefit, or other employee benefit plan, program, agreement, or arrangement maintained or contributed to by Seller or its Affiliates in respect of or for the benefit of any employee of Seller who is to be employed by Buyer in accordance with Article 12 ("Employee") or former employee, excluding any such plan, program, agreement, or arrangement maintained or contributed to solely in respect of or for the benefit of Employees or former employees employed or formerly
(a) also includes a true, complete and correct list of each “employee benefit plan” material written employment, severance, termination or similar-type agreement between Seller and its Affiliates and any Employee (the "Employment Agreements"). Except as otherwise disclosed on Schedule 9.1.17(a), the execution and delivery of this Agreement by Seller and the performance of this Agreement by Seller will not directly result now or at any time in the future in (i) the payment to any Employee of any severance, termination, or similar-type payments or benefits or (ii) any "parachute payment" (as such term is defined in Section 28OG of the IRC) being made to any Employee.
(b) Except as set forth on Schedule 9.1.17(b): (i) Neither Seller nor any of its Affiliates, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof, has engaged in any transaction as a result of which Seller could be subject to any material liability pursuant to Section 409 of ERISA or to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the IRC; and (ii) Since the effective date of ERISA, no material liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by Seller (other than liability for premiums due to the PBGC), unless such liability has been, or prior to the Closing Date will be, satisfied in full.
(c) Except as set forth on Schedule 9.1.17(c), with respect to the ERISA Plans other than those ERISA Plans identified on Schedule 9.1.17(a) as "multiemployer plans":
(i) the PBGC has not instituted proceedings to terminate any Plan that is subject to Title IV of ERISA (the "Retirement Plans"); (ii) none of the ERISA Plans has incurred an "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”IRC), whether or not subject to ERISAwaived, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies last day of the most recent fiscal year of each Company Benefit Plan that Buyers shall assume pursuant of the ERISA Plans ended prior to Section 5.8(f) the date of this Agreement Agreement; (including the LFG Deferred Compensation Plansiii) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each each of the Company Benefit ERISA Plans has been operated and administered in all material respects in accordance with its provisions and with all applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunderlaws; (iiiv) each Company Benefit Plan of the ERISA Plans that is intended to be “"qualified” " within the meaning of Section 401(a) of the CodeIRC and, to the extent applicable, Section 401(k) of the IRC, has received a favorable determination letter from been determined by the Internal Revenue ServiceIRS to be so qualified, or and nothing has pending an application for occurred since the date of the most recent such determination from (other than the Internal Revenue Service with respect effective date of certain amendments to those provisions for which the IRC, the remedial amendment period under Section 401(b) of the Code for which has not yet expired, and, to ) that would adversely affect the knowledge qualified status of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SECERISA Plans; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 With respect to each Benefit Plan, the Company has made available to Parent a true and correct copy of (i) the most recent annual report (Form 5500 and Schedules thereto) filed with the Internal Revenue Service, (ii) such Benefit Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Benefit Plan and any predecessor plans referred to therein, service provider agreements, insurance contracts, and agreements with investment managers, including all amendments thereto (iv) current summary plan descriptions of each Benefit Plan subject to ERISA and any similar descriptions of all other Benefit Plans, (v) the most recent determination of the Company Disclosure Schedule sets forth a true, complete and correct list IRS with respect to the qualified status of each “employee benefit plan” as defined in Benefit Plan that is intended to qualify under Section 3(3401(a) of the Employee Retirement Income Security Act Code (a "Qualified Plan"), and (vi) the most recent accountings with respect to any Benefit Plan funded through a trust.
(b) Neither the Company nor any of 1974its Subsidiaries maintains or is obligated to provide benefits under any life, medical or health plan which provides benefits to retirees or other terminated employees other than benefit continuation rights under the Consolidated Omnibus Budget Reconciliation of 1985, as amended (“ERISA”"COBRA").
(c) Neither the Company, whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or nor any ERISA Affiliate has at any time contributed to by any "multiemployer plan", as that term is defined in Section 4001 of ERISA.
(d) Neither the Company or nor any of its Subsidiaries or to which any Company ERISA Affiliate or any predecessor thereof maintains, has maintained at any time during the five-year period preceding the date of its Subsidiaries this Agreement, or is obligated to contributeprovide benefits under any pension plan subject to Part 3 of Title I of ERISA, Section 412 of the Code, or Title IV of ERISA.
(e) No rights have been granted to any person under the Company Stock Appreciation Rights Plan.
(f) Except as disclosed in the Disclosure Memorandum with specific reference to this Section, each Benefit Plan covers only employees and directors who are employed by, or a director of, the Company or a Subsidiary (or former employees, directors or beneficiaries with respect to which any service with the Company or any a Subsidiary), so that the transactions contemplated by this Agreement will require no spin-off of its Subsidiaries has any liability, direct assets and liabilities or indirect, contingent other division or otherwise (including any liability arising out transfer of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits rights with respect to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)plan.
(b) (ig) Each of the Company Benefit Plans is, and its administration is and has been operated and administered since inception, in all material respects in accordance with compliance with, and neither the Company nor any Subsidiary has received any claim or notice that any such Benefit Plan is not in compliance with, all applicable lawlaws, includingregulations, but not limited toorders, and prohibited transactions exemptions, including the requirements of ERISA, the Code Code, the Age Discrimination in Employment Act, the Equal Pay Act and in each case Title VII of the regulations thereunder; (ii) each Company Benefit Civil Rights Act of 1964. Each Qualified Plan intended to be “qualified” within the meaning of is qualified under Section 401(a) of the Code, has received a favorable determination letter from and, if applicable, complies with the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under requirements of Section 401(b401(k) of the Code. Each Benefit Plan which is intended to provide for the deferral of income, the reduction of salary or other compensation or to afford other tax benefits complies with the requirements of the applicable provisions of the Code or other laws required in order to provide such tax benefits.
(h) No event has not expiredoccurred, and, to the knowledge of Sellerthe Company, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and exists no condition exists that presents a risk to the Companies, their Subsidiaries or any set of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction circumstances in connection with any Benefit Plan, under which the Companies Company or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 Subsidiary, directly or 502(i) of ERISA indirectly (through any indemnification agreement or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pendingotherwise), threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in be subject to any risk of material liability under Section 409 of the Companies or any of their Subsidiaries andERISA, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1502(l) of the Code and any award thereunderERISA, in each case that is subject to Title IV of ERISA or Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A 4975 of the Code.
(ci) Neither No employer securities, employer real property or other employer property is included in the Companies nor assets of any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dj) With respect to the Benefit Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company, there exists no condition or set of circumstances, other than as disclosed in the Disclosure Memorandum with specific reference to this Section, in connection with which the Company or any of its Subsidiaries could be subject to any liability that, (i) as of the date hereof is reasonably likely to result in Losses in excess of $250,000 individually or $750,000 in the aggregate, or (ii) between the date hereof and the Closing Date would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect (except liability for benefits claims and funding obligations payable in the ordinary course), under ERISA, the Code or any other applicable law. Neither the execution Company nor any of its Subsidiaries has scheduled or delivery agreed upon future increases of benefit levels (or creations of new benefits) with respect to any Benefit Plan, and no such increases or creation of benefits have been proposed, made the subject of representations to employees or requested or demanded by employees under circumstances which make it reasonable to expect that such increases will be granted.
(k) Except as set forth in the Disclosure Memorandum with specific reference to this Agreement Section, with respect to the Benefit Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued in accordance with GAAP and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP, on the consolidated financial statements of the Company and its consolidated subsidiaries, which obligations, (i) as of the date hereof could result in Losses in excess of $250,000 individually or $750,000 in the aggregate, or (ii) between the date hereof and the Closing Date would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect.
(l) Except as set forth in the Disclosure Memorandum with specific reference to this Section, and except as described in Sections 5.15 hereof, neither the Company nor any Subsidiary is a party to any oral or written (i) consulting agreement not terminable on 60 days or less notice, (ii) agreement with any director, executive officer or key employee of the consummation Company or any Subsidiary the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, or agreement with respect to any executive officer of the Company or any Subsidiary providing any term of employment or compensation guarantee extending for a period longer than one year, or (iii) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement will, either alone or in conjunction with the value of any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(m) The following terms shall be defined as follows: "Benefit Plan" means any of the following established by the Company or any of their Subsidiaries its Subsidiaries, or to such individuals in the aggregate, (ii) materially increase the amount or value any ERISA Affiliate of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of paymentforegoing, vestingexisting at the Closing Date or prior thereto, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on to which the right of the Companies Company or any of their its Subsidiaries to amend, merge contributes or terminate any Company Benefit Plan or related trusthas contributed, or (v) be considered a change in control for under which any purpose under any Company Benefit Plan employee, former employee or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 director of the Code Company or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies Subsidiary or any beneficiary thereof is covered, is eligible for coverage or has benefit rights: any employment, bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock appreciation rights, stock purchase, stock option, phantom stock, retirement, vacation, severance, layoff, change of their Subsidiaries has made a pending demand for recognition control, disability, sick leave, death benefit, hospitalization, day or certificationdependent care, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filedcafeteria, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, worker compensation or other material labor disputes pending employee-related insurance or threatened against other plan, arrangement or involving understanding, whether or not legally binding, whether written or oral, including, but not limited to any "employee benefit plan" within the meaning of the Companies or any Section 3(3) of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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 healthERISA.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 Schedule 3.21(a) sets forth an accurate and complete list of all (i) Seller Employees and (ii) individual independent contractors of each Seller and each Seller Affiliate who work at the Facilities and/or provide services to the Business, in each case as of the Company Disclosure Schedule sets forth a truedate hereof, complete including (as applicable) their names, salary, wage or other compensation rates, target annual commission, bonus or other incentive-based compensation, accrued and correct list unused Paid Time Off, recognized date of each “hire, job title, status as part-time or full-time, status as employee benefit plan” as defined in Section 3(3) or independent contractor, name of the Employee Retirement Income Security Act of 1974employer or engaging entity, as amended (“ERISA”), whether or not subject to ERISAwork location, and each whether such Seller Employees or independent contractors are active or on a leave of absence (and, if so, the type of leave and anticipated return date). Currently and since the Lookback Date, Sellers have properly complied in all material employment, consulting, bonus, incentive respects with all Laws relating to the classification of individuals providing services to any Seller and any Seller Party (in connection with the Business) as consultants or deferred compensation, vacation, stock option independent contractors or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or employees and with respect to which all Laws relating to the classification of employees as exempt or non-exempt from the application of state and federal wage and hour Laws for all purposes, as the case may be, and have properly reported all compensation paid to such service providers for all purposes and no Proceeding has been initiated or, to the Knowledge of Sellers, threatened against any Company Seller with respect to any of the foregoing. Except as set forth on Schedule 3.16(a) and excluding Standard Offer Letters and consulting or independent contractor agreements that can be terminated for convenience, no Seller is a party to any oral or written (i) employment agreement (including severance or change of control agreements), (ii) consulting agreement, or (iii) independent contractor agreement with any Person, in each case that provides for annual compensation that is expected to exceed $100,000. No
(i) Seller Employee or other service provider of any Seller or any Seller Party who is of its Subsidiaries the director level or above or (ii) group of Seller Employees has informed any Seller or any Seller Party of any plan to terminate employment with or services for any Seller or any Seller Party or the Business, and to the Knowledge of Sellers, no such Person has any liability, direct plans to terminate employment with or indirect, contingent or otherwise (including services for any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company Seller or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) Seller Party or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)Business.
(b) Sellers and the Seller Parties (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of Business), as applicable, are not, and since the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunderLookback Date have not been, in each case that is subject in any material respect, delinquent in payments to, nor have failed to Section 409A pay, any current or former employee of any Seller or the Seller Parties who provides or provided services to the Business for any wages, salaries, commissions, bonuses or other direct compensation for any services performed for any of them or any other amounts required to be reimbursed to such employee (including overtime wages, Paid Time Off, and other benefits) or in the payment to the appropriate Governmental Authority of all required Taxes, insurance, Social Security and withholding thereon. As of the CodeEffective Time, has been operated no Sellers nor any Seller Party (in compliance in all connection with the Business), as applicable, will have any material respects with Section 409A Liability to any current or former employee of any Seller or any Seller Party who provides or provided services to the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodeBusiness or to any Governmental Authority.
(c) Neither the Companies nor any of their Subsidiaries will, Except as set forth on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(dSchedule 3.21(c) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, : (i) result in there is no pending or, to the Knowledge of Sellers, threatened labor disruptions or activities (including any material payment or benefit becoming due or payablework slowdown, lockout, handbilling, employee strike, or required to be provided, to work stoppage) at any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in Facilities, and none has occurred since the aggregate, Lookback Date; (ii) materially increase to the amount or value Knowledge of any benefit or compensation otherwise payable or required to be provided to any such directorSellers, employee or independent contractor, no union representation question exists respecting the Seller Employees; (iii) result in the acceleration of the time of payment, vesting, exercisability no demand has been made for recognition by a Union by or funding of with respect to any such benefit or compensationSeller Employees, (iv) result in no union organizing activities by or with respect to any material limitation on Seller Employees are taking place or, to the right Knowledge of Sellers, threatened, and there have been no such activities since the Companies or any of their Subsidiaries to amendLookback Date, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 none of the Code Seller Employees is represented by any Union; (vi) no collective bargaining agreement exists, has existed or is currently being negotiated by any Seller or any income Taxes under Seller Party (in connection with the Code Business) covering or with respect to the Seller Employees, any Facility or the Business; (Bvii) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees each Seller and each of the Companies or Seller Parties (in connection with the Business) have not since the Lookback Date and are not engaged in any of their Subsidiaries has made a pending demand for recognition or certification, unfair labor practice and there are is no representation material unfair labor practice charge or certification proceedings or petitions seeking a representation proceeding presently complaint against any Seller currently pending or threatened to be brought or filed, with before the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activitiessimilar Governmental Authority or, strikesto the Knowledge of Sellers, work stoppagesthreatened, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies Business or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.Facilities;
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Section 3.11 Neither Company nor any subsidiary is involved in any labor dispute nor, to the knowledge of the Company, is any such dispute threatened. Neither Company nor any subsidiary is party to any collective bargaining agreement. The Company’s and/or its subsidiaries’ employees are not members of any union, and the Company believes that its and its subsidiaries’ relationship with their respective employees is good. The Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants or independent contractors. The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification and collective bargaining. The Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has not made any representations regarding equity incentives to any officer, employee, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes of meetings of the Company’s Board of Directors. Subsection 2.17 of the Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined plan maintained, established or sponsored by the Company, or which the Company participates in Section 3(3) of or contributes to, which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Company has made all required contributions and, whether or not subject to its knowledge, has no liability to any such employee benefit plan, other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance complied in all material respects 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 healthfor any such employee benefit plan.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Samples: Series a Preferred Stock Purchase Agreement (Gi Dynamics, Inc.)
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each As of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan 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, or has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, to the Company’s knowledge, (1) no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee, nor does the Company have a present intention to terminate the employment of any of the date hereof foregoing, (2) each officer and as Key Employee of the Closing DateCompany is currently devoting all of his or her business time to the conduct of the Company’s business, (3) the actuarially determined present value Company is not aware that any of all “benefit liabilities” within its officers and Key Employees is planning to work less than full-time for the meaning Company in the future, (4) the employment of Section 4001(a)(16each employee of the Company is terminable at the will of the Company, (5) except as required by law, upon termination of ERISA did and does not exceed the then current value employment of assets of any such Company Benefit Plan employees, no severance or other payments will become due, and (B6) the amount Company has no policy, practice, plan, or program of such liabilities as paying severance pay or any form of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed severance compensation in connection with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than employment services.
(Aii) coverage mandated by applicable law or (B) death benefits or retirement benefits under The Company believes in good faith that any “employee pension nonqualified deferred compensation plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award the guidance thereunder) under which the Company makes, in each case that is subject obligated to Section make or promises to make, payments (each, a “409A of the Code, has been operated in compliance Plan”) complies in all material respects respects, in both form and operation, with the requirements of Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A and the guidance thereunder. To the knowledge of the CodeCompany, and (B)(1no payment to be made under any 409A Plan is, or will be, subject to the penalties of Section 409A(a)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(ciii) Neither As of the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubtdate hereof, the LandAmerica Financial GroupCompany has not made any representations regarding equity incentives or compensation to any officer, Inc. Cash Balance Plan is not an Assumed Planemployees, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes of meetings of the Company’s Board of Directors, the representations set forth herein, or the Disclosure Schedule.
(div) Neither the execution or delivery of this Agreement nor the consummation As of the transactions contemplated by date on which this Agreement willrepresentation and warranty is made or deemed made, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor each of the Companies or any of their Subsidiaries or Credit Parties and the ERISA Affiliates have made all required contributions to such individuals in the aggregateeach Plan, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their Subsidiaries has made a pending demand for recognition or certificationPension Plan, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, Multiemployer Plan in accordance with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activitiesterms of each such Plan, strikesPension Plan, work stoppagesand Multiemployer Plan and the requirements of all applicable laws, slowdownsand each Plan and each Pension Plan has been established, lockoutsmaintained, arbitrations or grievancesfunded, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is administered in compliance in all material respects with all applicable laws and the terms of each Plan or Pension Plan.
(v) As of the date on which this representation and warranty is made or deemed made, no Credit Party, any other Subsidiary of the Company or any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to any Plan or Pension Plan, and no event, transaction or condition has occurred or exists that could, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by any Credit Party, any other Subsidiary of the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of any Credit Party, any other Subsidiary of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to Section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or Section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Pension Plan, other than such liabilities or Liens as would not be individually or in the aggregate material.
(vi) As of the date on which this representation and warranty is made or deemed made, no Pension Plan has an Unfunded Pension Liability that is material. No Credit Party, any other Subsidiary of the Company or any ERISA Affiliate has incurred withdrawal liability under Section 4201 or 4204 of ERISA in respect of any Multiemployer Plan that has not been satisfied in full.
(vii) As of the date hereof, the Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the Company’s knowledge, threatened, nor is the Company aware of any labor organization activity involving its employees.
(viii) As of the date hereof, the Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, and collective bargaining agreements respecting bargaining. The Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.
(ix) As of the date hereof, each former Key Employee whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.
(x) As of the date hereof, to the Company’s knowledge, none of the Key Employees or directors of the Company has been (a) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (c) subject to any order, judgment, or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (d) found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated any federal or state securities, commodities, or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.
(xi) As of the date hereof, each person who, pursuant to any benefit, bonus or incentive plan of the Company, holds any currently outstanding shares of Common Stock or other securities of the Company or any option, warrant or right to acquire such shares or other securities, has entered into or is otherwise bound by, an agreement granting the Company (a) the right to repurchase the shares for the original purchase price, or to cancel the option, warrant or right, in the event the holder’s employment practicesor services with the Company terminate for any reason, subject to release of such repurchase or cancellation right on terms and conditions specified by the Company’s Board of employmentDirectors, wages and hours and occupational safety and health(b) a right of first refusal with respect to all such shares.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of With respect to each “employee pension benefit plan” , as defined in Section 3(33(2) of the Employee ERISA (a "Retirement Income Security Act Plan"), established or maintained or to which contributions have been made by or for Borrower, or any Subsidiary (including, for purposes of 1974this Section, as amended (“ERISA”)any other entity, whether or not subject to ERISAincorporated, which is part of a controlled group including Borrower or which is under common control with Borrower, as defined in Sections 414(b) and each material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar plan, program, agreement or commitment, whether written or unwritten, for the benefit of any employee, former employee, director or former director of any Company or any of its Subsidiaries entered into, maintained or contributed to by any Company or any of its Subsidiaries or to which any Company or any of its Subsidiaries is obligated to contribute, or with respect to which any Company or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent thereof (such plans, programs, agreements and commitments, herein referred to as the “Company Benefit Plans”). Section 3.11 of the Company Disclosure Schedule identifies each Company Benefit Plan that Buyers shall assume pursuant to Section 5.8(f) of this Agreement (including the LFG Deferred Compensation Plans) or the Companies or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”).
(b) (i) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable law, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(ac) of the Code): (i) the Retirement Plan, has received including all amendments, is the subject of a favorable determination letter from the Internal Revenue Service, Service (or has pending an application for such determination from a letter is presently pending); (ii) the Internal Revenue Service with respect to those provisions for which the remedial amendment period Retirement Plan is and has at all times been qualified, in form and operation, under Section 401(b401(a) of the Code Code; (iii) the Retirement Plan is and has not expiredat all times been administered, andmaintained and operated in compliance with its terms and with all applicable provisions of the Code, ERISA and all other applicable federal, state and local laws (and all rules and regulations promulgated thereunder); (iv) neither Borrower nor any Subsidiary, nor, to the knowledge of Sellerany director or officer of Borrower or any Subsidiary, there any other person or entity who or which is not any reason why any such determination letter should be revoked; (iiia party in interest as defined in Section 3(14) with respect to each Company Benefit Plan that is subject to Title IV of ERISA, or a disqualified person as defined in Section 302 of ERISA or Section 412 or 4971 4975(e)(2) of the Code, (A) as of the last day of the most recent plan year ended prior has acted or failed to act with respect to the date hereofRetirement Plan in any manner which constitutes a breach of fiduciary responsibility within the meaning of Title I, as Part 4 of the date hereof and as of the Closing DateERISA, the actuarially determined present value of all “benefit liabilities” a prohibited transaction within the meaning of Section 4001(a)(164975 of the Code or Sections 406 through 408 of ERISA, or any other violation of ERISA; (v) no contributions to the Retirement Plan are past due; (vi) no proceedings, investigations, filings or other matters are pending before the Internal Revenue Service, the Department of Labor or any court with respect to the Retirement Plan or the operation thereof; (vii) if the Retirement Plan is a multiemployer plan, as defined in Sections 3(37) or 4001(a)(3) of ERISA, neither Borrower nor any Subsidiary has incurred, and neither Borrower nor any Subsidiary expects to incur, any withdrawal liability which has not been satisfied in connection with any complete or partial withdrawal from the Retirement Plan occurring on or before the date hereof; and (viii) if subject thereto, the Retirement Plan has been funded in accordance with the minimum funding standards described in Section 412 of the Code and Title I, Subtitle B, Part 3 of ERISA (for which purpose there is no "accumulated funding deficiency"), and in accordance with principles that are actuarially sound for such Retirement Plan.
(b) With respect to each Retirement Plan which is a defined benefit plan, as defined in Section 3(35) of ERISA: (i) no event has occurred within the l2 month period preceding the date hereof, or, to the knowledge of any director or officer of Borrower or any Subsidiary is threatened or about to occur, which would materially adversely affect the actuarial status of the Retirement Plan; (ii) no fact exists in connection with the Retirement Plan (or with respect to any other defined benefit plan maintained by Borrower or any Subsidiary at any time after September 2, 1974) which constitutes a reportable event (other than those for which notice has been waived by the Pension Benefit Guaranty Corporation (the "PBGC")) under Section 4043(b) of ERISA did and does not exceed or which constitutes grounds for termination by, or other liability to, the then current value PBGC pursuant to Title IV of assets of such Company Benefit Plan ERISA; (iii) all premiums due the PBGC have been timely paid; and (Biv) if the Retirement Plan were terminated, the termination would qualify under the standard termination procedure, as described in Section 4041(b) of ERISA (and Part 2617 of the PBGC regulations), without payment of any additional contributions by Borrower or any Subsidiary.
(c) With respect to each employee welfare benefit plan, as defined in Section 3(1) of ERISA (a "Welfare Plan"), established or maintained or to which contributions have been made by or for Borrower or any Subsidiary: (i) the amount Welfare Plan is and has at all times been administered, maintained and operated in compliance with its terms and with all applicable provisions of such liabilities ERISA and the Code (including the continuation coverage requirements for group health plans, commonly known as "COBRA requirements," under Sections 106(b), 162(i)(2) & (3), and 162(k) of the last day Code and Sections 601-607 of the most recent plan year ended prior ERISA) and all other applicable federal, state and local laws (and all rules and regulations promulgated thereunder); (ii) neither Borrower nor any Subsidiary nor to the date hereof was properly reflected on knowledge of any director or officer of Borrower or any Subsidiary, any other person or entity who or which is a party in interest as defined in Section 3(14) of ERISA, has acted or failed to act with respect to the financial statements Welfare Plan in any manner which constitutes a breach of Seller fiduciary responsibility within the meaning of Title I, Part 4 of ERISA, a prohibited transaction within the meaning of Sections 406 through 408 of ERISA, or its applicable Subsidiary previously filed with any other violation of ERISA; (iii) no contributions to the SECWelfare Plan are past due; (iv) no Company Benefit Plan provides material benefitsproceedings, includinginvestigations, without limitation, death filings or medical benefits (whether other matters are pending before the Department of Labor or not insured)any court, with respect to current the Welfare Plan or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA)the operation thereof; and (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees of the Companies or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the Code.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Welfare Plan is not an Assumed Planeither unfunded or is funded solely through insurance contracts.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement willAll Retirement Plans and Welfare Plans (jointly "Benefit Plans") are in substantial compliance with all applicable reporting, either alone or in conjunction with any disclosure and other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 requirements of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.and ERISA.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activitiesactions, suits or claims pending or, to the best knowledge of Borrower or any Subsidiary, threatened with respect to any Benefit Plan, or any administrator or fiduciary thereof.
(f) There are no strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, material grievance proceedings or other material labor disputes pending controversies pending, imminent or, to Borrower's knowledge and belief, threatened between Borrower and any employees of Borrower or threatened against between Borrower and any union or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects with all applicable laws and other collective bargaining agreements respecting employment and employment practices, terms and conditions unit representing employees of employment, wages and hours and occupational safety and healthBorrower.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
Employee Matters. (a) Section 3.11 4.16(a) of the Company Disclosure Schedule sets forth a true, complete true and correct accurate list of each “(i) all employee benefit plan” as defined in plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ERISA (“ERISA”), whether or not subject to ERISA, )) and each material employment, consulting, all bonus, incentive or incentive, deferred compensation, vacationpension, stock option retiree health or other equity-basedlife insurance, supplemental retirement, employment, severance, termination, retention, change of controlsuperannuation, profit-sharing, fringe benefit welfare or other similar planbenefit plans, programprograms, agreement agreements or commitmentarrangements, whether written that are maintained, contributed to, or unwrittensponsored by any Acquired Company or with respect to which any Acquired Company would reasonably be expected to have any Liability, for the benefit of any employeeemployee who is employed by an Acquired Company (each such individual (including any employees of an Acquired Company who are not actively employed at such time and who have a right of re-instatement), former employeea “Business Employee”), director or former director any other individual service provider of any Company the Acquired Companies or any of its Subsidiaries entered intodependents thereof and (ii) all individual employment, maintained assignment, retention, termination, change in control, severance or contributed to by any Company other similar contracts or any of its Subsidiaries or agreements pursuant to which any Acquired Company or currently has any of its Subsidiaries is obligated to contribute, or Liability with respect to which any Company Business Employee, any other individual service provider of the Acquired Companies or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including any liability arising out of an indemnification, guarantee, hold harmless or similar agreement) or otherwise providing benefits to any current, former or future employee, officer or director of any Company or any of its Subsidiaries or to any beneficiary or dependent dependents thereof (such the plans, programs, arrangements, contracts and agreements described in clauses (i) and commitments(ii) above, herein excluding any plans, programs, arrangements, contracts or agreements not sponsored by any Acquired Company to which contributions by an employer are mandated by a Governmental Authority or by Law, are hereinafter referred to as the “Company Benefit Business Employee Plans”). Section 3.11 Each Business Employee Plan is in writing and, with respect to each Business Employee Plan, Sellers have previously made available to Buyer, true and correct copies of (A) each Business Employee Plan (or to the Company Disclosure Schedule identifies extent no such copy exists, an accurate and detailed written description thereof), (B) all amendments and related trust documents, and all material written Contracts relating to each Company Benefit Plan that Buyers shall assume pursuant Business Employee Plan, including administrative service agreements and group insurance Contracts, and (C) the most recent summary plan description, most recent annual report and most recent actuarial report prepared for each Business Employee Plan, as applicable. Except as specifically provided in the foregoing documents made available to Section 5.8(f) of this Agreement (including Buyer and except as provided by applicable Law, there are no amendments to any Business Employee Plan, nor has any party with the LFG Deferred Compensation Plans) authority to do so undertaken to make any such amendments or the Companies to adopt or their respective Subsidiaries shall continue to maintain or sponsor (collectively, the “Assumed Plans”)approve any new Business Employee Plan.
(b) (i) Each of the Company Benefit Plans Business Employee Plan complies in form and has been maintained, operated and administered in all material respects in compliance with its terms and all applicable Laws.
(c) All contributions to, and payments from and with respect to (including, without limitation, insurance premiums), each Business Employee Plan that may have been required to be made in accordance with the terms of any such Business Employee Plan and, when applicable, the Law of the jurisdiction in which such Business Employee Plan is maintained, have been timely made or properly accrued in all material respects in accordance with the terms of the applicable lawBusiness Employee Plan, applicable Law and GAAP (or other applicable accounting standards).
(d) Except as set forth on Section 4.16(d) of the Disclosure Schedule, the consummation of the Transactions (whether alone or in combination with any other related event) will not (i) require the payment to any Business Employee or other individual service provider of any Acquired Company of any money or other property or rights under any Business Employee Plan, (ii) accelerate or provide any other rights or benefits to any Business Employee under any Business Employee Plan, or (iii) limit or restrict the right to merge, amend, terminate or transfer the assets of any Business Employee Plan on or following the Closing.
(e) There are no (i) pending or threatened audits or investigations by any Governmental Authority involving any Business Employee Plan, (ii) claims pending or, to the Knowledge of Sellers, threatened (except for routine claims for benefits payable in the normal operation of such Business Employee Plan) against any Business Employee Plan, any trustee or fiduciary thereof, or the assets of any trust of any Business Employee Plan, or (iii) Actions against or involving any Business Employee Plan asserting any rights or claims to benefits under such Business Employee Plan, in each case, which will, or would reasonably be expected to, give rise to any material Liability.
(f) No Business Employee Plan provides post-retirement health and/or welfare benefits to any current or former Business Employee of the Acquired Companies, except as required by applicable Law.
(g) Except as set forth on Section 4.16(g) of the Disclosure Schedule, none of the Business Employee Plans are single employer pension plans, multiemployer plans (within the meaning of Section 3(37) of ERISA), or any other type of plan subject to Title IV of ERISA or Section 302 of ERISA, and, except as set forth on Section 4.16(g) of the Disclosure Schedule, neither the Acquired Companies nor any entity that would be deemed a “single employer” with the Acquired Companies under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA sponsors, maintains, contributes to, has any obligation to contribute to, or has, within the past six years, contributed to or had any obligation to contribute to any plan subject to Title IV of ERISA or Section 302 of ERISA.
(h) With respect to each Business Employee Plan, the fair market value of the assets of each funded Business Employee Plan, the liability of each insurer for any Business Employee Plan funded through insurance or the book reserve established for any Business Employee Plan for which a book reserve is required by GAAP, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations thereunder. The Transactions will not directly or indirectly adversely affect the sufficiency of such assets, insurance or book reserves. Each Business Employee Plan that is intended to qualify for special tax treatment under any applicable Law satisfies all requirements for such treatment.
(i) Besides the arrangements disclosed in Section 4.16(a) of the Disclosure Schedule or as otherwise required by Law, there is no arrangement in respect of any Business Employee that an Acquired Company is or may become liable (whether such Liability be actual or contingent, present or future) to provide or contribute to, under or in connection with which benefits are payable on death, retirement or leaving employment, including, but not limited to, ERISA, leaving employment on grounds of long-term sickness absence.
(j) Besides the Code and arrangements disclosed in each case the regulations thereunder; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a4.16(a) of the CodeDisclosure Schedule, no Acquired Company has received a favorable determination letter from the Internal Revenue Servicemade, or has pending agreed to make, a payment, or provided, or agreed to provide, a benefit to a former or current Business Employee or to their dependents in connection with an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under actual or proposed termination or suspension of employment or variation or proposed variation of an employment contract.
(k) Except as set forth on Section 401(b4.16(k) of the Code has not expired, and, to the knowledge of Seller, there is not any reason why any such determination letter should be revoked; (iii) with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (A) as of the last day of the most recent plan year ended prior to the date hereof, as of the date hereof and as of the Closing Date, the actuarially determined present value of all “benefit liabilities” within the meaning of Section 4001(a)(16) of ERISA did and does not exceed the then current value of assets of such Company Benefit Plan and (B) the amount of such liabilities as of the last day of the most recent plan year ended prior to the date hereof was properly reflected on the financial statements of Seller or its applicable Subsidiary previously filed with the SEC; (iv) no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not insured)Disclosure Schedule, with respect to current or former employees or directors of any Company or its Subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no Controlled Group Liability has been incurred by any Company, any of its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Companies, their Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability; (vi) neither the Companies nor any of their Subsidiaries contributes on behalf of employees services of the Companies type typically provided by employees, all personnel whose services are utilized in or any of their Subsidiaries to a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all material contributions or other material amounts payable by the Acquired Companies or any of their Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles; (viii) neither are employed by the Companies nor any of their Subsidiaries has engaged in a transaction in connection with which the Companies or any of their Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code; and (ix) there is no pending, threatened or anticipated claim (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto which could reasonably be expected to result in any material liability of the Companies or any of their Subsidiaries and, to the knowledge of Seller, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a claim. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code, and (B)(1) the proposed and final Treasury Regulations issued thereunder and (2) Internal Revenue Service Notice 2005-1, all subsequent Internal Revenue Service Notices and other interim guidance on Section 409A of the CodeAcquired Companies.
(c) Neither the Companies nor any of their Subsidiaries will, on and after the Closing, have any liabilities or obligations for any Company Benefit Plan which is not an Assumed Plan or a LFG Deferred Compensation Plan. For the avoidance of doubt, the LandAmerica Financial Group, Inc. Cash Balance Plan is not an Assumed Plan.
(d) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Companies or any of their Subsidiaries or to such individuals in the aggregate, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting, exercisability or funding of any such benefit or compensation, (iv) result in any material limitation on the right of the Companies or any of their Subsidiaries to amend, merge or terminate any Company Benefit Plan or related trust, or (v) be considered a change in control for any purpose under any Company Benefit Plan or related trust. No Company Benefit Plan provides for (A) the reimbursement of excise Taxes under Section 4999 of the Code or any income Taxes under the Code or (B) payments that would be non-deductible under Code Sections 162(m) or 280G.
(e) No labor organization or group of employees of the Companies or any of their 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 threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving any of the Companies or any of their Subsidiaries. Each of the Companies and its Subsidiaries is in compliance in all material respects 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.
(f) The Companies and their Subsidiaries do not maintain any material Company Benefit Plans (i) outside of the U.S. or (ii) for the benefit of any individual whose principal place of employment is outside of the U.S.
Appears in 1 contract
