Employee Plans; ERISA. (a) Schedule 3.13(a) contains a list of each employee benefit plan, agreement, arrangement, policy or commitment (whether or not an “employee benefit plan” within the meaning of Section 3(3) of ERISA), including, but not limited to, any employment, consulting, bonus, deferred compensation, incentive compensation, vacation, severance, termination or post-employment pay, disability, hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, stock appreciation, stock award, pension, profit sharing, 401(k) or retirement plan, agreement, arrangement, policy or commitment, and each other employee benefit plan, agreement, arrangement, policy or commitment arising out of the employment or the termination of an employee, former employee, retiree or sales personnel by the Company, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or not, which is currently maintained or contributed to by the Company or any trade or business (whether or not incorporated) that is under common control, or that is treated as a single employer, with the Company under Sections 414(a), (c), (m) or (o) of the Code (each, a “Commonly Controlled Entity”) covering their employees, former employees, retirees or sales personnel or with respect to which the Company or any Commonly Controlled Entity, respectively, has or in the future could have any direct or indirect, actual or contingent liability (each, a “Plan” and collectively, the “Plans”). Except as set forth in Schedule 3.13(a), neither the Company nor any Commonly Controlled Entity has any legally binding oral or written plan or other commitment, whether covered by ERISA or not, to create or participate in any additional plan, agreement or arrangement or to modify or change any existing Plan in any manner that would affect any of its employees, former employees, retirees or sales personnel. The Company has made available to Buyer true and complete copies of the Plans and the trust agreements and any contracts relating to the Plans and all other relevant documents governing or relating to the Plans in effect on the date hereof (including the latest summary plan description, the latest annual report (and all attachments) filed with the Internal Revenue Service with respect to each of the Plans, and the latest favorable determination letter issued by the Internal Revenue Service for each of the Plans, including any amendments to any of the foregoing. Neither the Company nor any Commonly Controlled Entity will incur any liability in connection with any Plan solely as a result of the consummation of the transactions contemplated by this Agreement. (b) The Company is in compliance in all material respects with all presently applicable provisions of ERISA, including the regulations and published interpretations thereunder; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification. (c) There are no pending, or to the Knowledge of the Sellers, threatened or anticipated, claims, litigation, administrative actions or proceedings against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by any governmental agency, or by any employee, former employee, leased employee, former leased employee, retiree or sales personnel or by any participant or beneficiary covered under any of the Plans, or otherwise involving the Plans (other than routine claims for benefits), nor, to the Knowledge of the Sellers, is there any basis for one. There is no judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator outstanding against or in favor of any Plan or, to the Knowledge of the Sellers, any fiduciary thereof in that capacity. No Assets of the Company are allocated to or held in a “rabbi trust” or similar funding vehicle. (d) The consummation of the transactions contemplated by this Agreement will not, of itself, entitle any current or former employee or leased or contract employee of the Company to severance pay, unemployment compensation or any similar payment or accelerate the time of payment or vesting, or increase the amount of compensation due to, or in respect of, any current or former leased or contract employee, nor will it result in the breach of any agreement with any current or former employee or leased or contract employee. (e) None of the Assets is subject to any Encumbrance under Section 302(f) of ERISA or Section 412(n) of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercloud Systems, Inc.)
Employee Plans; ERISA. (a) Schedule 3.13(a3.13(a) contains a list of each employee benefit plan, agreement, arrangement, policy or commitment (whether or not an “employee benefit plan” within the meaning of Section 3(3) of ERISA), including, but not limited to, any employment, consulting, bonus, deferred compensation, incentive compensation, vacation, severance, termination or post-employment pay, disability, hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, stock appreciation, stock award, pension, profit sharing, 401(k) or retirement plan, agreement, arrangement, policy or commitmentcommitment (other than immaterial unwritten policies), and each other employee benefit plan, agreement, arrangement, policy or commitment arising out of the employment or the termination of an employee, former employee, retiree or sales personnel by the Company, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or not, which is currently maintained or contributed to by the Company or any trade or business (whether or not incorporated) that is under common control, or that is treated as a single employer, with the Company under Sections 414(a), (c), (m) or (o) of the Code (each, a “Commonly Controlled Entity”) covering their employees, former employees, retirees or sales personnel or with respect to which the Company or any Commonly Controlled Entity, respectively, has or in the future could have any direct or indirect, actual or contingent liability (each, a “Plan” and collectively, the “Plans”). Except as set forth in Schedule 3.13(a3.13(a), neither the Company nor any Commonly Controlled Entity has any legally binding oral or written plan or other commitment, whether covered by ERISA or not, to create or participate in any additional plan, agreement or arrangement or to modify or change any existing Plan in any manner that would affect any of its employees, former employees, retirees or sales personnel. The Company has made available to Buyer true and complete copies of the Plans and the trust agreements and any contracts relating to the Plans and all other relevant documents governing or relating to the Plans in effect on the date hereof (including the latest summary plan description, the latest annual report (and all attachments) filed with the Internal Revenue Service with respect to each of the Plans, and the latest favorable determination letter issued by the Internal Revenue Service for each of the Plans, including any amendments to any of the foregoing. Neither the Company nor any Commonly Controlled Entity will incur any liability in connection with any Plan solely as a result of the consummation of the transactions contemplated by this Agreement.
(b) The Neither the Company nor any Commonly Controlled Entity maintains, nor have they ever maintained or contributed to, a “multiemployer plan,” as that term is defined in Section 414(f) of the Code or Sections 3(37) or 4001(a)(31) of ERISA, or an “employee benefit pension plan,” as defined in Section 3(2) of ERISA, that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. Except as set forth on Schedule 3.13(b), neither the Company nor any Commonly Controlled Entity has terminated any “employee benefit plan” as defined in Section 3(3) of ERISA.
(c) Full payment has been made of all amounts (other than current outstanding routine claims for benefits) that the Company is required to contribute or pay under the terms of any Plan, and all contributions to any Plan that are required or recommended with respect to any period of time prior to the Closing have been made or such amounts have been accrued in compliance accordance with generally accepted accounting principles. There are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with generally accepted accounting principles on the financial statements of the Company.
(d) Each of the Plans is and has been operated and administered in all material respects in accordance with all presently applicable provisions of ERISALaws, including but not limited to, ERISA and the regulations Code, and published interpretations thereunder; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would all required material governmental filings and material participant disclosures have any liability; the Company has not incurred been made on a timely basis, and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 each of the Code; and each “pension plan” for Plans which the Company would have any liability that is intended to be qualified under within the meaning of Section 401(a) of the Code is so qualified in all material respects and has received a favorable determination letter as to its qualification, and nothing has occurred, whether by action or by failure to act, which would that could reasonably be expected to cause the loss of such qualification. No prohibited transaction within the meaning of Section 406 of ERISA or 4975 of the Code, or breach of fiduciary duty under Title I of ERISA, has occurred with respect to any Plan or with respect to the Company. Each of the Plans which is subject to Section 409A of the Code has satisfied the requirements of Section 409A of the Code and has been established and administered in compliance with the requirements of Section 409A of the Code. The Company does not maintain any Plan that is subject to Section 401(a) of the Code, other than its 401(k) plan set forth on Schedule 3.13(a).
(ce) There are no pending, or to the Knowledge of the Sellers, threatened or anticipated, claims, litigation, administrative actions or proceedings against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by any governmental agency, or by any employee, former employee, leased employee, former leased employee, retiree or sales personnel or by any participant or beneficiary covered under any of the Plans, or otherwise involving the Plans (other than routine claims for benefits), nor, to the Knowledge of the Sellers, is there any basis for one. There is no judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator outstanding against or in favor of any Plan or, to the Knowledge of the Sellers, any fiduciary thereof in that capacity. No Assets of the Company are allocated to or held in a “rabbi trust” or similar funding vehicle.
(df) Each Plan that is a “group health plan” (as defined in Section 607(1) of ERISA) has been operated in compliance in all material respects with the provisions of COBRA (Section 4980B of the Code), the Health Insurance Portability and Accountability Act of 1996 and any applicable similar state law. The Company is not the sponsor of, or a participating employer in, any Plan that is an “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA that is not a fully insured plan. There are no reserves, assets, surpluses or prepaid premiums with respect to any employee welfare benefit plan. The Company does not currently provide and has no current obligation to provide for post-retirement or post-employment health and welfare benefits, including but not limited to, severance, salary continuation, termination, disability, death, or retiree health or medical benefits except as required by applicable Law.
(g) Except as set forth on Schedule 3.13(g), the consummation of the transactions contemplated by this Agreement will notnot (either alone or upon the occurrence of any other event, such as an individual’s termination of itselfemployment) constitute an event under any Plan that will or may result in (i) any payment (whether of severance pay or otherwise), entitle acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee or leased or contract employee of the Company to severance payor any Commonly Controlled Entity and (ii) any payment, unemployment vesting of benefits or compensation or provision of benefits or compensation which could be characterized as or deemed to be a “parachute payment,” within the meaning of Section 280G(b)(2) of the Code. There is no Plan, contract, plan or arrangement to which the Company (or any similar payment Commonly Controlled Entity) is a party or accelerate by which it is bound, that requires the time of payment Company (or vesting, or increase the amount of compensation due to, or in respect of, any current or former leased or contract Commonly Controlled Entity) to compensate any employee, nor will it result in the breach of any agreement with any current or former employee or leased any person providing services to the Company (or contract any Commonly Controlled Entity) for excise taxes paid pursuant to Section 4999 of the Code or for liability such employee, former employee or service provider incurs pursuant to Section 409A of the Code.
(eh) None of the Assets is subject to any Encumbrance under Section 302(f) of ERISA or Section 412(n) of the Code.
Appears in 1 contract
Employee Plans; ERISA. (a) Schedule 3.13(a) contains a list of each employee benefit plan, agreement, arrangement, policy or commitment (whether or not an “"employee benefit plan” " within the meaning of Section 3(3) of ERISA), including, but not limited to, any employment, consulting, bonus, deferred compensation, incentive compensation, vacation, severance, termination or post-employment pay, disability, hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, stock appreciation, stock award, pension, profit sharing, 401(k) or retirement plan, agreement, arrangement, policy or commitmentcommitment (other than immaterial unwritten policies), and each other employee benefit plan, agreement, arrangement, policy or commitment arising out of the employment or the termination of an employee, former employee, retiree or sales personnel by the CompanyBuyer, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or not, which is currently maintained or contributed to by the Company Buyer or any trade or business (whether or not incorporated) that is under common control, or that is treated as a single employer, with the Company Buyer under Sections 414(a), (c), (m) or (o) of the Code (each, a “"Commonly Controlled Entity”") covering their employees, former employees, retirees or sales personnel or with respect to which the Company Buyer or any Commonly Controlled Entity, respectively, has or in the future could have any direct or indirect, actual or contingent liability (each, a “"Plan” " and collectively, the “"Plans”"). Except as set forth in Schedule 3.13(a), neither the Company Buyer nor any Commonly Controlled Entity has any legally binding oral or written plan or other commitment, whether covered by ERISA or not, to create or participate in any additional plan, agreement or arrangement or to modify or change any existing Plan in any manner that would affect any of its employees, former employees, retirees or sales personnel. The Company Buyer has made available to Buyer Seller true and complete copies of the Plans and the trust agreements and any contracts relating to the Plans and all other relevant documents governing or relating to the Plans in effect on the date hereof (including the latest summary plan description, the latest annual report (and all attachments) filed with the Internal Revenue Service with respect to each of the Plans, and the latest favorable determination letter issued by the Internal Revenue Service for each of the Plans, including any amendments to any of the foregoing. Neither the Company Buyer nor any Commonly Controlled Entity will incur any liability in connection with any Plan solely as a result of the consummation of the transactions contemplated by this Agreement.
(b) The Company Neither the Buyer nor any Commonly Controlled Entity maintains, nor have they ever maintained or contributed to, a "multiemployer plan," as that term is defined in compliance Section 414(f) of the Code or Sections 3(37) or 4001(a)(31) of ERISA, or an "employee benefit pension plan," as defined in Section 3(2) of ERISA, that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. Except as set forth on Schedule 3.13(b), neither the Buyer nor any Commonly Controlled Entity has terminated any "employee benefit plan" as defined in Section 3(3) of ERISA.
(c) Full payment has been made of all amounts (other than current outstanding routine claims for benefits) that the Buyer is required to contribute or pay under the terms of any Plan, and all contributions to any Plan that are required or recommended with respect to any period of time prior to the Closing have been made or such amounts have been accrued in accordance with generally accepted accounting principles. There are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the financial statements of the Buyer.
(d) Each of the Plans is and has been operated and administered in all material respects in accordance with applicable Laws, including but not limited to, ERISA and the Code, and all presently applicable provisions required material governmental filings and material participant disclosures have been made on a timely basis. No prohibited transaction within the meaning of Section 406 of ERISA or 4975 of the Code, or breach of fiduciary duty under Title I of ERISA, including the regulations and published interpretations thereunder; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA Plan or with respect to termination of, or withdrawal from, the Buyer. The Buyer does not maintain any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Company would have any liability Plan that is intended subject to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurredCode, whether by action or by failure to act, which would cause the loss of such qualificationother than its 401(k) plan set forth on Schedule 3.13(a).
(ce) There are no pending, or to the Knowledge of the SellersSeller, threatened or anticipated, claims, litigation, administrative actions or proceedings against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by any governmental agency, or by any employee, former employee, leased employee, former leased employee, retiree or sales personnel or by any participant or beneficiary covered under any of the Plans, or otherwise involving the Plans (other than routine claims for benefits), nor, to the Knowledge of the SellersSeller, is there any basis for one. There is no judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator outstanding against or in favor of any Plan or, to the Knowledge of the SellersSeller, any fiduciary thereof in that capacity. No Assets of the Company Buyer are allocated to or held in a “"rabbi trust” " or similar funding vehicle.
(df) Each Plan that is a "group health plan" (as defined in Section 607(1) of ERISA) has been operated in compliance in all material respects with the provisions of COBRA (Section 4980B of the Code), the Health Insurance Portability and Accountability Act of 1996 and any applicable similar state law. The Buyer is not the sponsor of, or a participating employer in, any Plan that is an "employee welfare benefit plan" within the meaning of Section 3(1) of ERISA that is not a fully insured plan. There are no reserves, assets, surpluses or prepaid premiums with respect to any employee welfare benefit plan. The Buyer does not currently provide and has no current obligation to provide for post-retirement or post-employment health and welfare benefits, including but not limited to, severance, salary continuation, termination, disability, death, or retiree health or medical benefits except as required by applicable Law.
(g) Except as set forth on Schedule 3.13(g), the consummation of the transactions contemplated by this Agreement will not, of itself, entitle any current or former employee or leased or contract employee of the Company Buyer to severance pay, unemployment compensation or any similar payment or accelerate the time of payment or vesting, or increase the amount of compensation due to, or in respect of, any current or former leased or contract employee, nor will it result in the breach of any agreement with any current or former employee or leased or contract employee.
(eh) None of the Assets is subject to any Encumbrance under Section 302(f) of ERISA or Section 412(n) of the Code.
Appears in 1 contract
Employee Plans; ERISA. (a) Schedule 3.13(a) contains a list of each material employee benefit plan, agreement, arrangement, policy or commitment (whether or not an “employee benefit plan” within the meaning of Section 3(3) of ERISA), including, but not limited to, any material employment, consulting, bonus, deferred compensation, incentive compensation, vacation, severance, termination or post-employment pay, disability, hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, stock appreciation, stock awardequity compensation, pension, profit sharing, 401(k) or retirement plan, agreement, arrangement, policy or commitment, and each other employee benefit plan, agreement, arrangement, policy or commitment arising out of the employment or the termination of an employee, former employee, retiree or sales personnel by the Company, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or not, which is currently maintained or contributed to by the Company or any trade or business (whether or not incorporated) that is under common control, or that is treated as a single employer, with the Company under Sections 414(a), (c), (m) or (o) of the Code (each, a “Commonly Controlled Entity”) covering their which provides benefits to employees, former employees, retirees or sales personnel or with respect to which the Company or any Commonly Controlled Entity, respectively, has or or, in the future could have any direct or indirect, actual or contingent liability (each, a “Plan” and collectively, the “Plans”). Except as set forth in Schedule 3.13(a), neither the Company nor any Commonly Controlled Entity has does not have any legally binding oral or written plan or other commitment, whether covered by ERISA or not, to create or participate in any additional plan, agreement or arrangement or to modify or change any existing Plan in any manner that would affect any of its employees, former employees, retirees or sales personnel, except as may be required by Law. The Company has made available to Buyer true and complete copies of the Plans and the trust agreements and any material contracts relating to the Plans and all other material and relevant documents governing or relating to the Plans in effect on the date hereof (including the latest summary plan description, the latest annual report (and all attachments) filed with the Internal Revenue Service with respect to each of the Plans, and the latest favorable determination letter issued by the Internal Revenue Service for each of the Plans), including any amendments to any of the foregoing. Neither the Company nor any Commonly Controlled Entity will incur any liability in connection with any Plan solely as a result of the consummation of the transactions contemplated by this Agreement.
(b) The Neither the Company nor any Commonly Controlled Entity maintains, nor have they ever maintained or contributed to a “multiemployer plan,” as that term is defined in Section 414(f) of the Code or Sections 3(37) or 4001(a)(31) of ERISA, or an “employee benefit pension plan,” as defined in Section 3(2) of ERISA, that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. Except as set forth on Schedule 3.13(b), neither the Company nor any Commonly Controlled Entity has terminated any “employee benefit plan” as defined in Section 3(3) of ERISA that was subject to Code Section 412 or Title IV of ERISA.
(c) Full payment has been made of all amounts (other than current outstanding routine claims for benefits) that the Company is required to contribute or pay under the terms of any Plan, and all contributions to any Plan that are required or recommended with respect to any period of time prior to the Closing have been made or such amounts have been accrued in compliance accordance with generally accepted accounting principles. There are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with generally accepted accounting principles on the financial statements of the Company.
(d) Each of the Plans is and has been operated and administered in all material respects in accordance with applicable Laws, including but not limited to, ERISA and the Code, and all presently applicable provisions required material governmental filings and material participant disclosures have been made on a timely basis. No prohibited transaction within the meaning of Section 406 of ERISA or 4975 of the Code, or breach of fiduciary duty under Title I of ERISA, including the regulations and published interpretations thereunder; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA Plan or with respect to termination of, or withdrawal from, the Company. The Company does not maintain any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Company would have any liability Plan that is intended subject to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurredCode, whether by action or by failure to act, which would cause the loss of such qualificationother than its 401(k) plan set forth on Schedule 3.13(a).
(ce) There are no pending, or to the Knowledge of the Sellers’ Knowledge, threatened or anticipated, claims, litigation, administrative actions or proceedings against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by any governmental agency, or by any employee, former employee, leased employee, former leased employee, retiree or sales personnel or by any participant or beneficiary covered under any of the Plans, or otherwise involving the Plans (other than routine claims for benefits), nor, to the Knowledge of the Sellers’ Knowledge, is there any basis for one. There is no judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator outstanding against or in favor of any Plan or, to the Knowledge of the Sellers’ Knowledge, any fiduciary thereof in that capacity. No Assets of the Company are allocated to or held in a “rabbi trust” or similar funding vehicle.
(df) Each Plan that is a “group health plan” (as defined in Section 607(1) of ERISA) has been operated in compliance in all material respects with the provisions of COBRA (Section 4980B of the Code), the Health Insurance Portability and Accountability Act of 1996 and any applicable similar state law. The Company is not the sponsor of, or a participating employer in, any Plan that is an “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA that is not a fully insured plan. There are no reserves, assets, surpluses or prepaid premiums with respect to any employee welfare benefit plan. The Company does not currently provide and has no current obligation to provide for post-retirement or post-employment health and welfare benefits, including but not limited to, severance, salary continuation, termination, disability, death, or retiree health or medical benefits except as required by applicable Law.
(g) Except as set forth on Schedule 3.13(g), the consummation of the transactions contemplated by this Agreement will not, of itself, entitle any current or former employee or leased or contract employee of the Company to severance pay, unemployment compensation or any similar payment or accelerate the time of payment or vesting, or increase the amount of compensation due to, or in respect of, any current or former leased or contract employee, nor will it result in the breach of any agreement with any current or former employee or leased or contract employee.
(eh) None of the Assets is subject to any Encumbrance under Section 302(f) of ERISA or Section 412(n) of the Code.
(i) Each Plan that is subject to Section 409A of the Code is in compliance with the currently applicable requirements of Section 409A of the Code and the regulations, rulings and notices promulgated thereunder so that the additional tax described in Section 409A(a)(1)(B) will not be assessed with respect to benefits payable thereunder, and none of the Sellers have any obligation for any Taxes (or potential Taxes) imposed (or potentially imposed) on any employees of the Sellers under Section 409A of the Code.
Appears in 1 contract
Samples: Interest Purchase Agreement (Intercloud Systems, Inc.)
Employee Plans; ERISA. (a) Schedule 3.13(a) contains a list of each employee benefit plan, agreement, arrangement, policy or commitment (whether or not an “employee benefit plan” within the meaning of Section 3(3) of ERISA), including, but not limited to, any employment, consulting, bonus, deferred compensation, incentive compensation, vacation, severance, termination or post-employment pay, disability, hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, stock appreciation, stock award, pension, profit sharing, 401(k) or retirement plan, agreement, arrangement, policy or commitmentcommitment (other than immaterial unwritten policies), and each other employee benefit plan, agreement, arrangement, policy or commitment arising out of the employment or the termination of an employee, former employee, retiree or sales personnel by the CompanyBuyer, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or not, which is currently maintained or contributed to by the Company Buyer or any trade or business (whether or not incorporated) that is under common control, or that is treated as a single employer, with the Company Buyer under Sections 414(a), (c), (m) or (o) of the Code (each, a “Commonly Controlled Entity”) covering their employees, former employees, retirees or sales personnel or with respect to which the Company Buyer or any Commonly Controlled Entity, respectively, has or in the future could have any direct or indirect, actual or contingent liability (each, a “Plan” and collectively, the “Plans”). Except as set forth in Schedule 3.13(a), neither the Company Buyer nor any Commonly Controlled Entity has any legally binding oral or written plan or other commitment, whether covered by ERISA or not, to create or participate in any additional plan, agreement or arrangement or to modify or change any existing Plan in any manner that would affect any of its employees, former employees, retirees or sales personnel. The Company Buyer has made available to Buyer Seller true and complete copies of the Plans and the trust agreements and any contracts relating to the Plans and all other relevant documents governing or relating to the Plans in effect on the date hereof (including the latest summary plan description, the latest annual report (and all attachments) filed with the Internal Revenue Service with respect to each of the Plans, and the latest favorable determination letter issued by the Internal Revenue Service for each of the Plans, including any amendments to any of the foregoing. Neither the Company Buyer nor any Commonly Controlled Entity will incur any liability in connection with any Plan solely as a result of the consummation of the transactions contemplated by this Agreement.
(b) The Company Neither the Buyer nor any Commonly Controlled Entity maintains, nor have they ever maintained or contributed to, a “multiemployer plan,” as that term is defined in compliance Section 414(f) of the Code or Sections 3(37) or 4001(a)(31) of ERISA, or an “employee benefit pension plan,” as defined in Section 3(2) of ERISA, that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. Except as set forth on Schedule 3.13(b), neither the Buyer nor any Commonly Controlled Entity has terminated any “employee benefit plan” as defined in Section 3(3) of ERISA.
(c) Full payment has been made of all amounts (other than current outstanding routine claims for benefits) that the Buyer is required to contribute or pay under the terms of any Plan, and all contributions to any Plan that are required or recommended with respect to any period of time prior to the Closing have been made or such amounts have been accrued in accordance with generally accepted accounting principles. There are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the financial statements of the Buyer.
(d) Each of the Plans is and has been operated and administered in all material respects in accordance with applicable Laws, including but not limited to, ERISA and the Code, and all presently applicable provisions required material governmental filings and material participant disclosures have been made on a timely basis. No prohibited transaction within the meaning of Section 406 of ERISA or 4975 of the Code, or breach of fiduciary duty under Title I of ERISA, including the regulations and published interpretations thereunder; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA Plan or with respect to termination of, or withdrawal from, the Buyer. The Buyer does not maintain any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Company would have any liability Plan that is intended subject to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurredCode, whether by action or by failure to act, which would cause the loss of such qualificationother than its 401(k) plan set forth on Schedule 3.13(a).
(ce) There are no pending, or to the Knowledge of the SellersSeller, threatened or anticipated, claims, litigation, administrative actions or proceedings against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by any governmental agency, or by any employee, former employee, leased employee, former leased employee, retiree or sales personnel or by any participant or beneficiary covered under any of the Plans, or otherwise involving the Plans (other than routine claims for benefits), nor, to the Knowledge of the SellersSeller, is there any basis for one. There is no judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator outstanding against or in favor of any Plan or, to the Knowledge of the SellersSeller, any fiduciary thereof in that capacity. No Assets of the Company Buyer are allocated to or held in a “rabbi trust” or similar funding vehicle.
(df) Each Plan that is a “group health plan” (as defined in Section 607(1) of ERISA) has been operated in compliance in all material respects with the provisions of COBRA (Section 4980B of the Code), the Health Insurance Portability and Accountability Act of 1996 and any applicable similar state law. The Buyer is not the sponsor of, or a participating employer in, any Plan that is an “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA that is not a fully insured plan. There are no reserves, assets, surpluses or prepaid premiums with respect to any employee welfare benefit plan. The Buyer does not currently provide and has no current obligation to provide for post-retirement or post-employment health and welfare benefits, including but not limited to, severance, salary continuation, termination, disability, death, or retiree health or medical benefits except as required by applicable Law.
(g) Except as set forth on Schedule 3.13(g), the consummation of the transactions contemplated by this Agreement will not, of itself, entitle any current or former employee or leased or contract employee of the Company Buyer to severance pay, unemployment compensation or any similar payment or accelerate the time of payment or vesting, or increase the amount of compensation due to, or in respect of, any current or former leased or contract employee, nor will it result in the breach of any agreement with any current or former employee or leased or contract employee.
(eh) None of the Assets is subject to any Encumbrance under Section 302(f) of ERISA or Section 412(n) of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (HydroPhi Technologies Group, Inc.)
