Employee Arrangements Except as set forth on Section 8.2(h) of the UWWH Disclosure Schedules, pursuant to the terms of any collective bargaining agreements in effect as of the date hereof and disclosed on Section 6.15(a) of the UWWH Disclosure Schedules, as contemplated by this Agreement, as set forth in the Employee Matters Agreement or as otherwise required by applicable Law, UWWH shall not, nor shall it permit any of its Subsidiaries to:
(i) grant any material increases in the compensation (including bonus and incentive compensation) or fringe benefits of any UWWH Employee except any increases that would not reasonably be expected to become a Liability of the Surviving Corporation or its Subsidiaries;
(ii) pay or agree to pay to any UWWH Employee any pension, retirement allowance, severance benefit or other material employee benefit not required by any of the existing UWWH Benefit Plans as in effect on the date hereof, except as would not reasonably be expected to result in a Liability of the Surviving Corporation or its Subsidiaries;
(iii) except in the ordinary course of business, enter into any new, or terminate or materially amend any existing collective bargaining agreement or relationship, employment, severance or termination Contract or other arrangement with any UWWH Employee or his or her representative, provided, that any such new collective bargaining agreement or any termination of or material amendment to any such existing collective bargaining agreement in the ordinary course of business shall be subject to review by xpedx senior management reasonably in advance of the conclusion of such negotiations, and xpedx senior management shall have been informed periodically of the status of negotiations with respect thereto;
(iv) (A) become obligated under any new pension plan, welfare plan, employee benefit plan (including any equity incentive plan), severance plan, benefit arrangement or similar plan or arrangement sponsored or maintained by UWWH or any of its Subsidiaries that was not in existence on the date hereof, or (B) amend any such plan or arrangement in existence on the date hereof, except in the case of (B) (x) as would not result in a material increase in the annual aggregate cost (based on UWWH’s historical annual aggregate cost) of maintaining such pension plan, welfare plan, employee benefit plan, severance plan, trust, fund, policy or arrangement or (y) as would not reasonably be expected to result in a Liability of the Surviving Corporation or its Subsidiaries;
(v) grant any equity-based compensation to any UWWH Employee or director or independent contractor of UWWH or any of its Subsidiaries;
(vi) make any offer for the employment or engagement of any UWWH Employee or other individual on a full-time, part-time, or consulting basis providing for an annual compensation in excess of $250,000;
(vii) implement any distribution center, facility, warehouse or business unit closing or mass layoff that could implicate WARN; or
(viii) make any loan to (x) any director, officer or member of senior management of UWWH or any of its Subsidiaries or (y) except in the ordinary course of business and in compliance with applicable Law, to any other UWWH Employee.
Benefit Arrangements Each Benefit Arrangement has been maintained in compliance, in all material respects, with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangement, including without limitation, the Code, and with all plan documents. Except as set forth in SCHEDULE 4.8 and except as provided by law, the employment of all persons presently employed or retained by the Company is terminable at will.
Labor and Other Employment Matters (a) (i) Neither the Parent nor any of the Parent Subsidiaries is a party to or bound by any collective bargaining or similar agreement or work rules or practices with any labor union, works council, labor organization or employee association applicable to employees of the Parent or any Parent Subsidiary, nor are there any negotiations or discussions currently pending between the Parent or the Parent Subsidiaries and any union, work counsel, labor organization, or employee association, (ii) there have been no strikes, work stoppages, shutdowns, or lockouts with respect to any Parent Employee during the last five (5) years, (iii) to the knowledge of the Parent, there is no effort pending or threatened against the Parent or any Parent Subsidiary, (iv) there is no unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the knowledge of the Parent, threatened with respect to Parent Employees, and (v) there is no slowdown, work stoppage or similar labor activity in effect or, to the knowledge of the Parent, threatened with respect to Parent Employees; except, with respect to clauses (ii) through (v) hereof, as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(b) The Parent and the Parent Subsidiaries are, and have been, in compliance in all material respects with all applicable Laws respecting (i) employment and employment practices, (ii) terms and conditions of employment and wages and hours, including the obligations of the WARN Act, (iii) unfair labor practices, and (iv) occupational safety and health and immigration, except as set forth in Section 5.12(b) of the Parent Disclosure Letter, neither Parent nor any Parent Subsidiary has implemented, conducted or experienced a “plant closing” or “mass layoff” as defined in the WARN Act (or any similar group personnel action requiring advance notice under the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of Parent or any Parent Subsidiary.
(c) Except as set forth in Section 5.12(c) of the Parent Disclosure Letter, there are no proceedings pending or, to the knowledge of the Parent, threatened against the Parent or any of the Parent Subsidiaries in any forum by or on behalf of any present or former Parent Employee or any present or former employee of any Person providing services to any Parent Entity for which Parent could reasonably be expected to be liable that, individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect, any applicant for employment or classes of the foregoing alleging unpaid or overdue wages or compensation due, breach of any express or implied employment contract, violation of any Law or regulation governing employment or the termination thereof, or any other discriminatory, wrongful or tortious conduct on the part of the Parent of any of the Parent Subsidiaries in connection with the employment relationship that, individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect.
(d) Each individual who renders service to the Parent or any Parent Subsidiary who is classified by the Parent or such Parent Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under any Parent Employee Benefit Plans) is properly so classified and treated in accordance with applicable Laws and for purposes of all Parent Employee Benefit Plans and perquisites.
Plans and Benefit Arrangements Except to the extent a violation of the following would not reasonably be expected to have a Material Adverse Effect:
(i) With respect to all Benefit Arrangements, Plans and Multiemployer Plans, the Borrower and each member of the Controlled Group is in compliance with all applicable provisions of ERISA and any other Applicable Laws. There has not been any non-exempt Prohibited Transaction or Reportable Event with respect to any Benefit Arrangement or any Plan or, to the best knowledge of the Borrower, with respect to any Multiemployer Plan or Multiple Employer Plan. The Borrower and all members of the Controlled Group have made any and all payments required to be made under any agreement relating to a Multiemployer Plan or a Multiple Employer Plan or any Applicable Law pertaining thereto. With respect to each Plan and Multiemployer Plan, the Borrower and each member of the Controlled Group (i) have fulfilled their obligations under the minimum funding standards of ERISA, (ii) have not incurred any liability to the PBGC and (iii) have not had asserted against them any penalty for failure to fulfill the minimum funding requirements of ERISA.
(ii) With respect to any Plan, no determination has been made that such Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).
(iii) To the best of the Borrower’s knowledge, each Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder when due.
(iv) Neither the Borrower nor any member of the Controlled Group has instituted proceedings to terminate any Plan in other than a “standard termination” (as defined in ERISA Section 4041(b)). Neither the Borrower nor any member of the Controlled Group has incurred any liability under Title IV of ERISA with respect to the termination of any Plan.
(v) No event requiring notice to the PBGC under Section 303(k)(4)(A) of ERISA has occurred or is reasonably expected to occur with respect to any Plan.
(vi) Neither the Borrower nor any member of the Controlled Group has been notified by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan has been reorganized or terminated within the meaning of Title IV of ERISA or is in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA, and, to the best knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan is or shall be reasonably expected to be reorganized or terminated, within the meaning of Title IV of ERISA.
(vii) To the extent that any Benefit Arrangement is insured, the Borrower and all members of the Controlled Group have paid when due all premiums required to be paid. To the extent that any Benefit Arrangement is funded other than with insurance, the Borrower and all members of the Controlled Group have made all contributions required to be paid for all prior periods.
(viii) Neither the Borrower nor any member of the Controlled Group has withdrawn from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, nor has a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA occurred.
Employment Arrangements (a) Except as required by Law, Seller has no obligation, contingent or otherwise, under any employment agreement, collective bargaining or other labor agreement, any agreement containing severance or termination pay arrangements, retainer or consulting arrangements, or purchase plan or other employee contract or non-terminable (whether with or without penalty) arrangement with respect to any person employed by Seller in connection with the businesses operated at the Restaurants (including but not limited to district managers) (collectively “Subject Employees”).
(b) Except as set forth on Schedule 2.11(b), within the last five (5) years Seller has not experienced any labor disputes, union organization attempts or any work stoppage due to labor disagreements. Except as set forth on Schedule 2.11(b), (i) Seller is in substantial compliance with all applicable Laws, including all Federal and state labor laws, rules and regulations, respecting employment and employment practices, terms and conditions of employment and wages and hours, and is not engaged in any unfair labor practice; (ii) there is no unfair labor practice, charge or complaint against Seller pending or threatened before the National Labor Relations Board; (iii) there is no labor strike, dispute, request for representation, slowdown or stoppage actually pending or threatened against or affecting Seller; (iv) no question concerning representation has been raised or is threatened respecting the employees of Seller; and (v) no grievance which might have an adverse effect on Seller or the conduct of its business nor any arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist.
(c) Schedule 2.11(c) sets forth a true and complete list of (i) the names of all manager and assistant managers employed by Seller at the Restaurants as of the date hereof, including both salaried and hourly managers, the date such individuals were first employed by Seller, how long such individuals have been at the particular Restaurants and the salary or hourly wage payable to such persons; (ii) the names of all other persons employed by Seller at the Restaurants as of the date hereof, and the salary or hourly wage payable to each such person; and (iii) the total number of vacation days earned and/or accrued by all persons employed by Seller and the total monetary value of such accrued vacation for all such persons (“Accrued Vacation Pay”). As of the Closing, Seller shall have terminated all Subject Restaurant Employees and no additional payments shall be due and owing to any Subject Restaurant Employee with respect to any period prior to and including the Closing Date (except for any amount claimed by any Subject Restaurant Employee but which has being denied or contested by the Seller in good faith, which shall be an Excluded Liability) or amounts that Seller shall be obligated to pay (including, without limitation, payments relating to such employees' Accrued Vacation). Seller has complied with all requirements of the Worker Adjustment and Retraining Notification Act of 1988 and has not incurred, nor is reasonably expected to incur, any Losses under such Act.
(d) Except as set forth on Schedule 2.11(d): (1) no charge against Seller or any of the employees of the Restaurants is pending before the Equal Employment Opportunity Commission, the National Labor Relations Board, or any other Governmental Authority responsible for the prevention of unlawful employment practices related to the Restaurants; (2) no actions relating to employment or loss of employment from Seller, directly or indirectly, are pending in any Governmental Authority and no such Actions have been threatened against Seller related to the Restaurants; and (3) no notice of intent of any Governmental Authority responsible for the enforcement of labor or employment regulations to conduct an investigation has been received, and no such investigation is in progress.
(e) Each of the employees at the Restaurants is employed at will and may be terminated at any time by Seller without the payment of any severance or other penalty and without any requirement that any advance notice be given in connection with such termination.
(f) The Accrued Vacation has been earned and accrued in the ordinary course of Seller's business consistent with past practices.
(g) Seller is not, and has not been, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, "Union"), and there is not, and has not been, any Union representing or purporting to represent any employee of Seller, and no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting Seller or any employees of the Business. Seller has no duty to bargain with any Union.
Employee Benefit Arrangements (i) All liabilities under the Employee Benefit Arrangements are (A) funded to at least the minimum level required by Law or, if higher, to the level required by the terms governing the Employee Benefit Arrangements, (B) insured with a reputable insurance company, (C) provided for or recognized in the financial statements most recently delivered to the Administrative Agent pursuant to Section 6.01 hereof or (D) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent pursuant to Section 6.01 hereof, where such failure to fund, insure, provide for, recognize or estimate the liabilities arising under such arrangements could reasonably be expected to have a Material Adverse Effect.
(ii) There are no circumstances which may give rise to a liability in relation to the Employee Benefit Arrangements which are not funded, insured, provided for, recognized or estimated in the manner described in clause (i) above and which could reasonably be expected to have a Material Adverse Effect.
(iii) Each of Parent and each of its Restricted Subsidiaries is in compliance with all applicable Laws, trust documentation and contracts relating to the Employee Benefit Arrangements (including pursuant to any applicable procedures under applicable Law, as appropriate), except as would not reasonably be expected to have a Material Adverse Effect.
Employee Benefit Plans; Employment Agreements Except in --------------------------------------------- each case as set forth in SCHEDULE 4.10, (i) there has been no "prohibited transaction," as such term is defined in Section 406 of the Employee Retirement Income Security Act of 1975, as amended ("ERISA") and Section 4975 of the Code, with respect to any employee pension plans (as defined in Section 3(2) of ERISA, any material employee welfare plans (as defined in Section 3(1) of ERISA), or any material bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other similar fringe or employee benefit plans, programs or arrangements (collectively, the "COMPANY EMPLOYEE PLANS") which could result in any liability of the Company or any of its Subsidiaries; (ii) all Company Employee Plans are in compliance in all material respects with the requirements prescribed by any and all Laws (including ERISA and the Code), currently in effect with respect thereto (including all applicable requirements for notification to participants or the Department of Labor, Pension Benefit Guaranty Corporation (the "PBGC"), Internal Revenue Service (the "IRS") or Secretary of the Treasury), and the Company and each of its Subsidiaries have performed all material obligations required to be performed by them under, are not in any material respect in default under or violation of, and have no knowledge of any material default or violation by any other party to, any of the Company Employee Plans; (iii) each Company Employee Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable determination letter from the IRS, and nothing has occurred which may reasonably be expected to impair such determination; (iv) all contributions required to be made to any Company Employee Plan pursuant to Section 412 of the Code, or the terms of any Company Employee Plan or any collective bargaining agreement, have been made on or before their due dates; (v) with respect to each Company Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA (excluding any such event for which the 30-day notice requirement has been waived under the regulations to Section 4043 of ERISA) nor any event described in Section 4062, 4063 or 4041 of ERISA has occurred; (vi) no withdrawal (including a partial withdrawal) has occurred with respect to any multiemployer plan within the meaning set forth in Section 3(37) of ERISA that has resulted in, or could reasonably be expected to result in, any withdrawal liability for the Company or any of its Subsidiaries; (vii) neither the Company nor any of its Subsidiaries has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than liability for premium payments to the PBGC, and contributions not in default to the respective plans, arising in the ordinary course), (viii) none of the Company or any of its Subsidiaries is a party to any employment, consulting or similar agreement; and (ix) none of the Company or any of its Subsidiaries is or will be liable for any severance or other payments to any of its employees as a result of this Agreement or the consummation of the transactions contemplated hereby.
Employee Plans Except as provided in Section 4.12, the Assuming Institution shall have no liabilities, obligations or responsibilities under the Failed Bank's health care, bonus, vacation, pension, profit sharing, deferred compensation, 401K or stock purchase plans or similar plans, if any, unless the Receiver and the Assuming Institution agree otherwise subsequent to the date of this Agreement.
Company Plans Section 1.11(a)................ 6 Company................................Preamble....................... 1
Benefit Plans (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
