Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan. (b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years. (i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents. (d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.11(a) of the Contributor Company Disclosure Schedule Schedules sets forth a true true, accurate and complete list of all Employee Benefit Plans. With respect to each Company Employee Benefit Plan.
(b) The Company has previously , the Group Companies have provided to Local Insight true CHP with true, accurate and complete copies of, as applicable: (i) each written Company if the plan has been reduced to writing, the underlying plan document together with all amendments thereto (and no material Employee Benefit Plan; Plan is unwritten), (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; any related trust agreements, custodial agreements, insurance policies administrative agreements and similar Contracts, (iii) the most recent determination letter from the IRS summary plan description (if applicable) for each Company Benefit Plan; and any summaries of material modifications thereto), (iv) in the current summary plan description case of each Company any Employee Benefit Plan that is subject intended to ERISA; be qualified under Section 401(a) of the Code, the most recent opinion or determination letter received from the IRS or U.S. Department of Labor relating to such Employee Benefit Plan, (v) a copy of Form 5500 filed for the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; most recent plan year, with schedules attached thereto, (vi) a summary with respect to any year during which the Group Companies were an “applicable large employer” (within the meaning of the material terms of each unwritten Company Benefit Plan; ACA), IRS Forms 1094-C, with respect to 2015 to 2020 and (vii) the annual report for each Company Benefit Plan all non-routine or material correspondence (if applicableincluding any applications or submissions under any voluntary correction programs) for each of with any Governmental Entity in the last three six (6) years.
(ib) Except as set forth on the Contributor Disclosure ScheduleEach Employee Benefit Plan, each Company Benefit Plan including any associated trust or fund, has been established and at all relevant times maintained, funded funded, operated and administered in compliance in all material respects in accordance with its terms and in compliance with all applicable LawLaws, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) . None of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of Group Companies nor any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintainsthereof have ever, sponsorssponsored, contributes tomaintained, contributed to or had an obligation to contribute to or has had any current or potential liability or obligation under (or Liability with respect toto (i) (A) any a “defined benefit plan” (as defined in Section 3(35) of ERISA or other plan subject to Title IV of ERISA), (Bii) any a pension plan subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code, (iii) a “multiemployer plan” (as defined in Section 3(37) of ERISA)ERISA or Section 414(f) of the Code, (Civ) any benefit a “multiple employer plan, program, agreement” as described in Section 413(c) of the Code, or arrangement that provides for post-retirement (v) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No Group Company nor any of their respective ERISA Affiliates have any Liabilities to provide any retiree or post-termination medical, health or life insurance or other welfare-type benefits to any Person other than as described in health continuation coverage pursuant to COBRA or similar applicable Law and for which the recipient pays the full cost of coverage.
(c) Each Employee Benefit Plan and related trust that is intended to be qualified under Section 3.12(d401(a) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Code or exempt from taxation under Section 3(40501(a) of ERISAthe Code is so qualified and has timely received a favorable determination or opinion or advisory letter from the Internal Revenue Service upon which it may rely, and, to the Company’s knowledge, nothing has occurred since the date of such letter that would reasonably be expected to result in the revocation of such qualified or exempt status of any such Employee Benefit Plan or related trust or result in material Liability to any of the Group Companies. No Group Company has incurred, or is reasonably expected to incur or to be subject to, any tax, penalty or other Liability that may be imposed under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (Ethe “ACA”). As of the date of this Agreement, there are no pending or, to the Company’s knowledge, threatened, claims or Proceedings with respect to any Employee Benefit Plan (other than routine claims for benefits in the ordinary course of business). No Employee Benefit Plan is, or has been, the subject of an inquiry, examination, or audit by a Governmental Entity or the subject of an application or filing under, or a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program in the last three (3) years. There have been no non-exempt “multiple employer planprohibited transactions” within the meaning of Section 210 4975 of the Code or Sections 406 or 407 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk breaches of fiduciary duty (as determined under ERISA) with respect to the Companyany Employee Benefit Plan. With respect to each Employee Benefit Plan, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or and premium payments that are due have been timely made or, if not yet made, have been properly accrued under GAAP.
(d) Each Employee Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined in Section 409A of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viiiCode) the Company, the Company Subsidiaries complies and the other Company ERISA Affiliates have has complied and are in compliance in all material respects (both in form and in operation) with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes requirements of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company regulations and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsguidance promulgated thereunder.
(de) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will not (either alone or in conjunction combination with any other event): ) (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit becoming due to or result in the forgiveness of any indebtedness of any current or former officer, employee, director or individual independent contractor of any of the Group Companies, (including non-deductible remuneration ii) create or increase the amount or value of any compensation or benefits payable to any current or former officer, employee, director or individual independent contractor of any of the Group Companies, (as described iii) result in Section 162(mthe acceleration of the time of payment or vesting, or trigger any payment or funding (or increase in funding) of any compensation or benefits to any current or former officer, employee, director or individual independent contractor of any of the CodeGroup Companies, (iv) severancelimit or restrict the right of any of the Group Companies, retentionCHP, stay-putor any of their respective Affiliates to merge, change amend or terminate any Employee Benefit Plan or any related Contract, or (v) cause the payment or provision of controlany amount or benefit that, unemployment compensationindividually or in combination with any other payment or benefit, could be characterized as an “excess parachute payment” (within the meaning of Section 280G of the Code), tax .
(f) The Group Companies have no obligation to make a “gross-up, forgiveness of indebtedness ” or otherwise) becoming due similar payment to any Person from the Company current or former officer, employee, director or independent contractor in respect of any of the Company Subsidiaries under any Company taxes or interest or penalty related thereto.
(g) No Employee Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company is a Foreign Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule 4.18 hereto sets forth a true and complete list of all Employee Plans and Benefit Arrangements maintained, administered or contributed to, or otherwise participated in, by Company. True and complete copies of each Company such Employee Plan or Benefit Plan.
(b) The Company has previously Arrangement, including amendments thereto, have been provided to Local Insight FNFI, together with true and complete copies of: of (i) each written Company Benefit Planannual reports for the most recent three (3) years (Form 5500 Series including, if applicable, Schedules A and B thereto); (ii) all plan documents and the actuarial report for most recent summary plan description of each Company Benefit Plan (if applicable) for each of the last three yearssuch Employee Plan, together with any modifications thereto; and (iii) the most recent favorable determination letter from the IRS (if applicable) from the Internal Revenue Service for each Company Benefit such Employee Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy . None of the description of each Company Benefit Plan not subject to ERISA that Employee Plans is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “"multiemployer plan” (" as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, ERISA or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “a "multiple employer plan” within the meaning of " as covered in Section 210 of ERISA or Section 413(c412(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a , and the Company ERISA Affiliate that has not been satisfied obligated to make a contribution to any such multiemployer or multiple employer plan. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to each such Employee Plan or Benefit Arrangement and all contributions for any period ending on or before the Closing Date which are not yet due have been paid to each such Employee Plan or Benefit Arrangement or accrued in fullaccordance with past custom and practice of Company. Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and each trust maintained pursuant thereto is exempt from income tax under Section 501(a) of the Code. Neither Company nor any Employee Plan, and no condition exists that presents a risk to the Companynor any trusts created thereunder, the Company Subsidiaries or nor any trustee, administrator nor any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciaryfiduciary thereof, has engaged in a transaction or taken or failed to take any action "prohibited transaction," as defined in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) 406 of ERISA or a material Tax imposed pursuant to and Section 4975 or 4976 of the 19 Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planfiduciary duty as defined in Part 4 of Subtitle B of Title I of ERISA.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity National Financial Inc /De/)
Employee Plans. (a) Section 3.12(aThere is no (nor has there ever been) any trade or business (whether or not incorporated), under common control with the Seller within the meaning of Sections 414(b), (c), (m) or (o) of the Contributor Disclosure Code. Schedule 5.20 sets forth a true all pension, savings, retirement, health, insurance, severance and complete list of each Company Benefit Plan.
other employee benefit or fringe benefit plans maintained or sponsored by the Seller, or with respect to which the Seller has any responsibility or liability (bincluding any contingent liability) The Company (collectively referred to herein as the “Plans”). With respect to the Plans, the Seller has previously provided delivered to Local Insight true and complete the Buyer copies of: (i) each written Company Benefit Planthe plan documents, and, where applicable, related trust agreements, and any related agreements which are in writing; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three yearssummary plan descriptions; (iii) the most recent Internal Revenue Service determination letter from the IRS (if applicable) relating to each Plan for each Company Benefit Planwhich a letter of determination was obtained; (iv) to the current summary plan description extent required to be filed, the most recent Annual Report (Form 5500 Series and accompanying schedules of each Company Benefit Plan that is subject to ERISAand applicable financial statements) as filed with the Internal Revenue Service; and (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (audited financial statements, if applicable) for each of the last three yearsany.
(ib) Except as set forth on the Contributor Disclosure ScheduleSchedule 5.20, each Company Benefit (i) Each Plan has been maintainedconforms to, funded and administered its administration is in compliance in with, all material respects with its terms and applicable Lawrequirements of law, including including, without limitation, ERISA and the Internal Revenue Code of 1986, as amended (the “Code; ”) and (ii) each Company Benefit Plan intended all of the Plans are in full force and effect as written, and all premiums, contributions and other payments required to be “qualified” within made by the meaning Seller under the terms of any Welfare Plan (as hereinafter defined) have been made or accrued.
(c) Each Plan maintained by the Seller that is required to be qualified under Section 401(a) of the Code Code, and each trust maintained pursuant thereto has received been determined to be exempt from federal taxation by the Internal Revenue Service and has a favorable determination letter from that has been issued by the IRS, and there are no circumstances that would reasonably be expected Internal Revenue Service with respect to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan. No Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined that is an employee welfare benefit plan” (plan as defined in Section 3(353(1) of ERISA), ERISA (Ba “Welfare Plan”) any “multiemployer plan” (is funded through a voluntary employee beneficiary association as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c501(c)(9) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as set forth on Schedule 5.20, the Seller has never maintained, contributed to or incurred any liability with respect to any Plan subject to Title IV of ERISA or Section 412 of the Code. The Seller has no material liability under Section 4062 of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA. The Seller has not engaged in any transaction described in Section 3.12(d4069 of ERISA.
(e) There are no multiemployer plans (as defined in Subsection 3(37) of ERISA) (“Multiemployer Plans”) to which the Contributor Disclosure ScheduleSeller is or has been required to make a contribution or other payment. The Seller has not withdrawn in a complete or partial withdrawal from any Multiemployer Plan, neither nor has the execution and delivery Seller incurred any material liability due to the termination or reorganization of this Agreement nor the consummation of the transactions contemplated by this Agreement will a Multiemployer Plan.
(either alone or in conjunction with any other event): (if) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including There has been no non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” exempt prohibited transaction (within the meaning of Section 280G 4975 of the CodeCode or Part 4 of Subtitle B of Title I of ERISA) with respect to any Pension Plan or penalty under Section 502(i) of ERISA.
(g) The Seller does not maintain any Plan providing post-retirement benefits qualified under Section 401(a) of the Code (“Post-Retirement Benefits”). The Seller is not liable for Post-Retirement Benefits under any plan not maintained by the Seller. The Seller has complied in all material respects with the requirements of Section 4980B of the Code and Sections 601 to 608 of ERISA relating to continuation coverage for group health plans.
(h) There has been no material violation of ERISA or the Code with respect to the filing of applicable reports, documents and notices regarding the 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 Plans.
(i) There are no pending actions, claims or lawsuits which have been asserted, instituted or, to the best of the Seller’s knowledge, threatened, against the Plans, the assets of any of the trusts under such Plans or the Plan sponsor or the Plan administrator, or, to the best of the Seller’s knowledge, against any fiduciary of the Plans with respect to the operation of such Plans (other than routine benefit claims).
(j) Except as set forth on Schedule 5.20, the 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.
(k) There has been no mass layoff or plant closing as defined by W.A.R.N. or any similar state or local “plant closing” law with respect to the employees of the Seller.
(l) Except as set forth on Schedule 5.20, the execution of, and performance of the transactions contemplated in, this Agreement will not, either alone or upon the occurrence of subsequent events, result in any payment (whether of severance pay or otherwise), tax gross-upacceleration, forgiveness of indebtedness indebtedness, vesting, distribution, increase in benefits or otherwise) becoming due obligation to fund benefits with respect to any Person from the Company or any employee of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanSeller.
Appears in 1 contract
Employee Plans. With respect to every "employee pension plan" or "employee welfare benefit plan", as defined in ERISA, sponsored by Seller or in which any employee of Seller participates (a) Section 3.12(a) of singly, a "Plan" and collectively, the Contributor Disclosure Schedule sets forth a true "Plans"), Seller and complete list of each Company Benefit Plan.
(b) The Company has previously provided Shareholder have heretofore delivered to Local Insight true the Buyer true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letters relating to each written Company Benefit Plan; Plan which is a pension, profit-sharing, or stock bonus plan qualified (or intended to be qualified) under Section 401(c) of the Code, listed in Exhibit 4.3(n) hereto for which a determination letter was obtained;
(ii) the actuarial report for most recent Annual Report (Form 5500 series) and accompanying schedules of each Company Benefit Plan (if applicable) for each currently sponsored by any of them, with respect to which the last three years; same are required, as filed pursuant to applicable law;
(iii) the most recent determination letter from the IRS (if applicable) annual, quarterly and monthly financial statements or reports for each Company Benefit Planand all Plans; and
(iv) the current all plan documents, as amended to date, summary plan description descriptions and summaries of material modifications and all plan termination documentation with respect to each Company Benefit Plan that is subject to ERISA; (v) a copy presently or in the past sponsored by any member of the description Selling Group, except for the multi-employer plans referred to below. With respect to each of each Company Benefit Plan not subject such Plans as to ERISA that which an Annual Report (Form 5500 series) is currently provided required to participants in such plan; (vi) a summary be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material terms change has occurred with respect to the matters covered by the last Annual Report since the date thereof. Seller and Shareholder do not know, nor have any reasonable grounds to know, of each unwritten Company Benefit Plan; any "prohibited transaction," as such term is defined in Section 406 of ERISA and (vii) the annual report for each Company Benefit Plan (if applicable) for each Section 4975 of the last three years.
(i) Except as set forth Code, which has ever been engaged in by Shareholder or Seller, or by any Plan sponsored by Seller, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and prohibited transactions imposed by Section 4975 of the Code; (ii) each Company Benefit Plan intended . There are no actions, suits or claims pending or, to be “qualified” within the meaning best of Seller's or Shareholder's knowledge, after due inquiry, threatened, against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any of said trusts have incurred any "accumulated funding deficiency," as such term is defined in Section 401(a302 of ERISA or Section 412(a) of the Code has received a favorable determination letter from (whether or not waived), since the IRSeffective date of ERISA. The terms and operation of each of the Plans have complied to the extent required with the provisions of the Code and ERISA, and there are no circumstances that would reasonably be expected to adversely affect all reports and notices required by ERISA or the qualified status of any such Company Benefit Plan, Code have been duly filed or given. Seller and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted Shareholder shall deliver to the IRS for Buyer a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none list of all of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) members of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Seller's Plans subject to Title IV of ERISA and all trusts created thereunder which have been terminated, and all "reportable events," as that term is defined in Section 4043 of ERISA. Except as may be specified in Exhibit 4.3(n) hereto, none of such Plans and no such trust has been incurred terminated, nor has any such "reportable event" occurred with respect to any such Plans since the effective date of ERISA. The present value, on a plan termination basis, of all benefits accrued under each Plan sponsored or contributed to by a Company ERISA Affiliate that has not been satisfied in full, Seller and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) Title IV of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pendingdid not, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect most recent valuation date, exceed the fair market value of the assets of such Plan as of such date. Seller has never been a sponsor of, and/or a contributing employer to, a multi-employer pension plan subject to each Company Benefit Plan have been made the provisions of Section 4201, et seq., of ERISA; or properly accrued; (viii) the Companyif it has, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or it has never incurred any withdrawal liability by reason of being treated thereunder, nor will it incur any such liability as a single employer under Section 414 result of the Code with consummation of any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement agreement; or if it will, at or prior to the Closing Date, it will (either alone pay or otherwise satisfy such liability in conjunction full and/or establish an escrow fund or secure a bond in an appropriate amount with respect to the same with an escrow agent and/or a bonding company reasonably satisfactory to the Buyer and in a manner agreeable to applicable law. Seller has never been a sponsor of, or a contributing employer to, a single employer pension plan subject to the provisions of Section 4041, et seq., of ERISA; nor has it ever incurred any other event): (i) liability thereunder or under Section 4062, et seq., of ERISA, nor will it incur any such liability as a result in of the Company or consummation of any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwisetransactions contemplated by this agreement; or (iii) result if it will, at or prior to the Closing Date, it will pay or otherwise satisfy such liability in any acceleration of the time of payment or vesting of, or any requirement to full and/or establish an escrow fund or secure, any amounts or benefits or result secure a bond with respect to the same as provided in any breach of or default under any Company Benefit Planthe preceding sentence.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.18(a) of the Contributor Disclosure Schedule sets forth contains a true and complete list of Employee Plans. With respect to each Company Benefit Plan.
such Employee Plan (b) The other than those relating to Target and its Subsidiaries), the Company has previously provided to Local Insight the Purchasers true and complete copies of: of (i) each written Company Benefit Plan; all plan documents and related trust agreements, annuity contracts or other funding instruments, (ii) the actuarial report for each Company Benefit all summary plan descriptions, summaries of material modifications, all material employee communications and a complete description of any Employee Plan (if applicable) for each of the last three years; which is not in writing, (iii) the most recent determination letter from issued by the IRS Internal Revenue Service and any opinion letter issued by the Department of Labor with respect to each Pension Plan and each voluntary employees' beneficiary association as defined under Section 501(c)(9) of the Code (if applicable) for each Company Benefit other than a Multiemployer Plan; ), (iv) for the current summary three most recent plan description of years, the Internal Revenue Service Form 5500 including all schedules and attachments thereto for each Company Benefit Pension Plan that is subject to ERISA; and Welfare Plan, and (v) a copy description setting forth the amount of any liability of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary and its Subsidiaries as of the material terms of each unwritten Company Benefit Closing Date for payments more than thirty (30) calendar days past due with respect to any Welfare Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure ScheduleEach Employee Plan including any related trust agreement, each Company Benefit Plan has been maintained, funded annuity contract or other funding instrument is legally valid and administered binding and in compliance in all material respects with its terms full force and applicable Law, including ERISA and the Code; effect.
(ii) Each Pension Plan and each Company Benefit Plan related trust agreement, annuity contract or other funding instrument which is intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS, and there are no circumstances Internal Revenue Service stating that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, Pension Plan and each such Company Benefit related trust is qualified and tax-exempt under the provisions of Code Sections 401(a) and 501(a) and has been so qualified during the period from its adoption to date. Each Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are maintained in compliance in all material respects with COBRA; (ix) its terms, both as to form and operation, and with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Employee Plan, including, without limitation, ERISA and the Code. Except as provided by law or in any employment agreement set forth on Schedule 3.18, the employment of all persons presently employed or retained by the Company and the Company or its Subsidiaries have no current or potential obligation or liability by reason of being treated is terminable at will.
(c) Except as a single employer under set forth in Section 414 3.18(c) of the Code with any Person Disclosure Schedule (i) none of the Employee Plans (other than the Company and the Company Subsidiaries; (xany Multiemployer Plan) each Company Benefit Plan is a plan that constitutes a nonqualified deferred compensation plan for purposes is or has ever been subject to Title IV of ERISA, Section 409A 302 of the Code has been operated in good faith compliance with ERISA or Section 409A 412 of the Code and all applicable IRS guidance thereunder; and (xiii) none of the Company and the Company Subsidiaries haveEmployee Plans is a plan or arrangement described under Section 4(b)(5) or 401(a)(1) of ERISA, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as a plan maintained in connection with a trust described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m501(c)(9) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Olivetti International Sa)
Employee Plans. (a) Section 3.12(aSchedule 4.13(a) of the Contributor Company Disclosure Schedule sets forth lists all "employee benefit plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other employee benefit plans or other benefit arrangements, including but not limited to all employment and consulting agreements and all bonus and other incentive compensation, deferred compensation, disability, severance, retention, salary continuation, vacation, stock award, stock option, stock purchase, collective bargaining or workers' compensation agreements, plans, policies and arrangements which the Company or any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a true "single employer" within the meaning of Section 4001(b) of ERISA, maintains, is a party to, has contributed to or has any obligation to or liability for current or former employees and directors of the Company (each an "Employee Benefit Plan" and collectively, the "Employee Benefit Plans"). Schedule 4.13(a) separately identifies each of such plans and arrangements Employee Benefit Plan subject to Title IV of ERISA.
(b) True, correct and complete list copies of the following documents with respect to each Company of the Employee Benefit Plans (as applicable) have been delivered or made available to Buyer: (i) the most recent plan, document or agreement, related trust documents and all amendments thereto, (ii) the most recent summary plan description and all related summaries of material modifications, (iii) the annual report on Form 5500 and attached schedules filed with the Internal Revenue Service in the last three years, (iv) the most recent actuarial report, (v) the most recent Internal Revenue Service determination letter, and (vi) a description of any non-written Employee Benefit Plan.
(bc) The Company has previously provided to Local Insight true and complete copies of: Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company, (i) each written Company all payments required to be made by or under any Employee Benefit Plan, any related trusts, or any collective bargaining agreement have been timely made; (ii) the actuarial report for each Company and its ERISA Affiliates have performed all material obligations required to be performed by them under any Employee Benefit Plan (if applicable) for each of the last three yearsPlan; (iii) the most recent determination letter from Employee Benefit Plans comply in all respects and have been maintained in compliance with their terms and the IRS (if applicable) for each Company Benefit Planrequirements of ERISA, the Code and other applicable laws; and (iv) there are no actions, suits, arbitrations or claims (other than routine claims for benefits) pending or, to the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy knowledge of the description of each Company Benefit Plan not subject Company, threatened with respect to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company any Employee Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(id) Except The Company and its ERISA Affiliates have not incurred any unsatisfied withdrawal liability with respect to any "multiemployer plan" as set forth on the Contributor Disclosure Schedule, each Company defined in Section 4001(a)(3) of ERISA.
(e) Each Employee Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan related trust which are intended to be “"qualified” " within the meaning of Section Sections 401(a) and 501(a) of the Internal Revenue Code has received a favorable determination letter of 1986, as from time to time amended (the IRS"Code"), respectively, have been determined by the Internal Revenue Service to be so "qualified" under such Sections, as amended by the Tax Reform Act of 1986, and there are the Company knows of no circumstances that fact which would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Employee Benefit Plan has been timely amended for the legislation commonly known and its related trust.
(f) Except as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter set forth on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(dSchedule 4.13(f) of the Contributor Company Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability contemplated by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedulethis Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other event): (i) result in any payment becoming due, or increase the amount of compensation due, to any current or former employee or director of the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwiseits subsidiaries; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Employment Benefit Plan or otherwisePlan; or (iii) result in any the acceleration of the time of payment or vesting ofof any such benefits.
(g) No Employee Benefit Plan has an "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code, or nor has any requirement to fund or secure, any amounts or benefits or result in any breach waiver of the minimum funding standards of Section 302 of ERISA and Section 412 of the Code been requested of or default granted by the Internal Revenue 12 17 Service with respect to any Employee Benefit Plan, nor has any lien in favor of any such plan arisen under Section 412(n) of the Code or Section 302(f) of ERISA.
(h) The "benefits liabilities," as defined in Section 4001(a)(16) of ERISA, of each of the Employee Benefit Plans subject to Title IV of ERISA using the actuarial assumptions that were used in the most recent actuarial valuation (a true and complete copy of which has been provided to Buyer) in the event it terminated each such plan, do not exceed the fair market value of the assets of each such plan.
(i) No stock or other security issued by the Company forms or has formed a material part of the assets of any Company Employee Benefit Plan.
(j) No Employee Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for current or former employees or directors of the Company or any of its ERISA Affiliates for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable Laws, (ii) death benefits under any "pension plan" as defined in Section 3(2) of ERISA, or (iii) benefits, the full cost of which is borne by such current or former employee or director (or his or her beneficiary).
Appears in 1 contract
Employee Plans. (a) Section 3.12(aSchedule 5.18(a) of the Contributor Disclosure Schedule sets forth contains a true correct and complete list of each Employee Plan established, sponsored, maintained, contributed to or required to be contributed to by any Group Company Benefit for the benefit of current or former employees of any Group Company or under which any Group Company has any current or contingent liability that is more than a de minimis amount with respect to any Person (each, a “Company Plan” and collectively, the “Company Plans”). Each Company Plan that is maintained primarily for the benefit of employees working outside of the United States shall be referred to herein as a “Non-U.S. Company Plan”.
(b) The Group Companies have provided or made available to the Buyers or their counsel with respect to each Company has previously provided to Local Insight Plan a true and complete copies of: copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto, or if such Company Plan is unwritten, a written summary of its material terms, and to the extent applicable, (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the Internal Revenue Service (the “IRS”) regarding the tax-qualified status of such Company Plan and any other notices, letters or other correspondence, if any, received by the Group Companies from the IRS or the Department of Labor; (ii) the most recent financial statements for such Company Plan, if applicableany; (iii) for each Company Benefit Planthe most recent actuarial valuation report, if any; (iv) the current summary plan description and any summaries of each Company Benefit Plan that is subject to ERISAmaterial modifications related thereto; and (v) a copy of Form 5500 Annual Returns/Reports, including all schedules and attachments, including the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of certified audit opinions, for the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsmost recent plan year.
(ic) Except as set forth on the Contributor Disclosure Schedule, each Each Company Benefit Plan has been funded, maintained, funded established and administered in all material respects in accordance with its terms, and is in compliance in all material respects with its terms the applicable provisions of ERISA, the Code and other applicable Law, Laws. All contributions (including ERISA all employer contributions and employee salary reduction contributions) and payments required to have been made under or on account of any of the Code; Company Plans have been made by the due date thereof and all contributions for any period ending on or before the Closing Date which are not yet due are properly accrued in accordance with GAAP.
(iid) With respect to each Company Benefit Plan that is intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code Code, such plan, and its related trust, has received a favorable determination letter (or opinion letters in the case of any prototype plans) from the IRSIRS that it is so qualified and that its trust is exempt from tax under Section 501(a) of the Code, and there are no circumstances that would nothing has occurred with respect to the operation of any such Company Plan which could reasonably be expected to adversely affect cause the qualified status loss of such qualification or exemption or the imposition on any Group Company of any such Company Benefit material liability, penalty or tax under ERISA or the Code. With respect to the Xxxxxxx International 401(k) Profit Sharing Plan and Trust (the “401(k) Plan”), (i) as of the date of this Agreement, there are no participant loans outstanding thereunder, (ii) participation under the 401(k) Plan is limited solely to eligible persons, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none since December 31, 2014, no employer matching contributions have been made under the 401(k) Plan.
(e) No Company Plan is subject to Title IV or Section 302 of ERISA or Section 412, 430 or 4971 of the CompanyCode. No Group Company or any ERISA Affiliates of any Group Company has, any Company Subsidiaryin the six (6) years prior to the date hereof, maintained an Employee Plan subject to Title IV of ERISA or Section 412 or Section 430 of the Code, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c3(37) of the Code; (iv) ERISA. No event has occurred and no condition exists that would subject any Group Company to any liability under Title IV of ERISA has been incurred or Section 412 or Section 430 of the Code by a Company reason of its affiliation with an ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or otherwise (excluding any other Company liability as an ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Buyers and their respective Subsidiaries and the other Company ERISA Affiliates have complied from and are in compliance in all material respects with COBRA; (ix) after the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsClosing).
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither Neither the execution and delivery of this Agreement any Transaction Document nor the consummation of the transactions contemplated by this Agreement thereby will (either alone or in conjunction combination with any other another event): ) (i) result in any payments becoming due, or increase the amount of any compensation or benefits due, from any Group Company to any current or former employee, officer, director or consultant of any Group Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due with respect to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwisePlan; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwiserequire any Group Company to adopt or institute any Employee Plan that would be a Company Plan if it were in existence on the date hereof; or (iii) result in any the acceleration of the time of payment or vesting ofof any such compensation or benefits; or (iv) except as provided by applicable Law, limit or restrict the Buyers from merging, amending or terminating any of the Company Plans without incurring any liability other than ordinary administrative costs.
(g) Neither the execution and delivery of any Transaction Document nor the consummation of the transactions contemplated thereby will (either alone or in combination with another event) result in the payment of any amount that would, individually or in combination with any other such payment, not be deductible as a result of Section 280G of the Code.
(a) No Group Company or, to the knowledge of the Sellers, any other “disqualified person” (within the meaning of Section 4975 of the Code) or any “party in interest” (within the meaning of Section 3(14) of ERISA) has engaged in any “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA) with respect to any of the Company Plans that could subject any of the Company Plans, any Group Company or any current or former officer, director, manager or employee of any Group Company to a material penalty or Tax under ERISA or the Code.
(b) There are no pending or, to the knowledge of the Sellers, threatened actions, claims or lawsuits against or relating to the Company Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any requirement fiduciary of the Company Plans with respect to fund or securethe operation of such Company Plans (other than routine benefits claims).
(a) Except as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code, any amounts similar state Law or any other applicable Law, no Company Plan provides benefits or result coverage in the nature of health, life or disability insurance following retirement or other termination of employment.
(b) No equity holder of any breach Group Company nor, to the knowledge of the Sellers, any officer or default under director thereof, has made any promises or commitments, whether legally binding or not, to create any additional Employee Plan, or to modify or change any existing Company Benefit PlanPlan (other than as contemplated by this Agreement or a modification or change required by a Company Plan or applicable Law, including ERISA or the Code).
(c) All payments made by any Group Company or its Affiliates to current or former employees, partners, or Associated Partners, of any Group Company that have been denominated or otherwise treated by such Group Company as loans were properly characterized as such for Tax purposes and all income Taxes, social security, unemployment and other Taxes in respect thereof (regardless of whether such payments were properly characterized as loans) have been duly and timely withheld, remitted and reported by such Group Company and its Affiliates in compliance with applicable Law as of the Closing Date, other than participant loans pursuant to any tax-qualified plan, no loans or other extensions of credit by any Group Company or its Affiliates to any current or former employees, partners, or Associated Partners of any Group Company or its Affiliates are outstanding.
(d) Each Non-U.S. Company Plan (i) if intended to qualify for special tax treatment, meets in all material respects all requirements for such treatment, and (ii) if intended to be funded and/or book-reserved, is fully funded and/or book-reserved in accordance with GAAP, as appropriate, based upon reasonable actuarial assumptions. Except as required by applicable Law or maintained by a Governmental Entity, no Non-U.S. Company Plan is a defined benefit pension plan.
Appears in 1 contract
Samples: Purchase Agreement (Cowen Inc.)
Employee Plans. (ai) Section 3.12(a3.1(hh) of the Contributor Disclosure Schedule sets forth a true Letter lists all Employee Plans, and complete list of each Company Benefit Planall Multiemployer Plans with respect to which the Purchased Corporations have any liability.
(bii) The Company has previously provided To the extent applicable with respect to Local Insight true each Employee Plan, true, correct and complete copies ofof the most recent documents described below have been made available to the Purchaser: (i) each written Company Benefit PlanIRS determination letter and any outstanding request for a determination letter; (ii) Form 5500 for the actuarial report for each Company Benefit Plan (if applicable) for each of the last three most recent plan years, including any attachments or exhibits thereto; (iii) the most recent determination letter from the IRS all plan documents and amendments thereto (if applicable) for each Company Benefit Planand where such Employee Plans are oral commitments written summaries); (iv) the current summary plan description descriptions and any summaries of material modifications; (v) administrative service agreements, HIPAA business associate agreements, related trust agreements, annuity contracts and other funding instruments, and (vi) form of letters and notices given to employees under Code Section 4980B, HIPAA policies and procedures and HIPAA notice of privacy practices.
(iii) The consummation of the transactions contemplated by this Agreement will not accelerate the time of payment or vesting under any Employee Plan. With respect to each Company Benefit Employee Plan, no prohibited transactions (as defined in ERISA Section 406 or Code Section 4975) and no violations of ERISA Section 407 have occurred, in each case, except where such occurrence would not reasonably be expected to result in a Material Adverse Effect. Each Employee Plan (and its related trust) that is intended to qualify under Code Section 401(a) and to be tax exempt under Code Section 501(a) is separately identified on the Disclosure Letter as such, and each such Employee Plan has been determined by the IRS to qualify thereunder for all applicable requirements and, to the knowledge of the Vendors, nothing has since occurred to cause the loss of the Employee Plan’s qualification.
(iv) Each Purchased Corporation does not and has never sponsored or participated in a “registered pension plan” as such term in defined in the Tax Act. The Purchased Corporations have not made or been required to make any contributions to, nor have any liability (including by reason of being in a controlled group under Sections 414 of the Code) with respect to, any employee pension benefit plan that is subject to ERISA; the provisions of Title IV of ERISA or any Multiemployer Plan including any “multi-employer plan” as defined under the British Columbia Pension Benefits Standards Act or similar provincial pension legislation.
(v) a copy None of the description Purchased Corporations have any liability or obligation to provide life, medical, or other welfare benefits to former or retired employees, other than under COBRA (or any similar applicable state or provincial Laws requiring the continuation of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; medical benefits).
(vi) a summary of the Each Employee Plan is in material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and Laws.
(vii) All contributions to the Code; Employee Plans or any Multiemployer Plan payable by a Purchased Corporation (ii) each Company Benefit Plan intended or with respect to be “qualified” within the meaning of Section 401(a) of the Code has received which a favorable determination letter from the IRS, and there are no circumstances that Purchased Corporation would reasonably be expected to adversely affect have liability) have been made on a timely basis in accordance with ERISA and the qualified status of any such Company Benefit Plan, Code and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company SubsidiaryLaw, or else appropriate accruals have been made in the Current Balance Sheets for any other Company ERISA Affiliate maintains, sponsors, contributes to, contributions owing. All insurance premiums with respect to each Employee Plan or has any current or potential liability or obligation under Multiemployer Plan payable by a Purchased Corporation (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by to which a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan Purchased Corporation would reasonably be expected to be have liability) have been paid in a timely fashion in accordance with the terms of each such plan and applicable Laws, or else appropriate accruals have been made in the Current Balance Sheets for any insurance premiums owing.
(viii) Other than routine claims and appeals for benefits, no Employee Plan is 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; (vi) there are no pending, any pending or, to the Knowledge knowledge of the ContributorsVendors, threatened or anticipated claims action, investigation, examination, claim (other than routine including claims for benefits)Taxes) or any other proceeding initiated by any Person, auditsand, investigations, proceedings, or suits by, on behalf of or against any to the knowledge of the Company Benefit Plans; (vii) all paymentsVendors, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; no facts exist that would give rise thereto.
(ix) the Company and the Company Subsidiaries have no current Neither GB Acquisition USA, Inc. nor any of its subsidiaries is a party to any contract, arrangement or potential obligation Employee Plan that has resulted or liability by reason of being treated would result in a payment that would not be fully deductible as a single employer under result of Section 414 280G of the Code with (determined without regard to the reasonableness of any Person other than the Company such compensation), and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (give rise to the payment of any amount that would not be deductible pursuant to Code Section 280G. Except as specifically set forth on Section 3.1(hh) of the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not, either alone or in conjunction together with any other event): : (i) result in the Company entitle any current or former director, independent contractor or employee of any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severancePurchased Corporation to severance pay, retentionbonus amounts, stay-put, change of controlretirement benefits, unemployment compensation, “excess parachute termination benefits, or any other payment” ; or (within ii) trigger or accelerate the meaning time of Section 280G payment, funding, or vesting, or increase the amount or value of the Code), tax gross-up, forgiveness of indebtedness any benefit or otherwise) becoming compensation due to any Person from current or former director, independent contractor or employee of any Purchased Corporation.
(x) Each Employee Plan that provides for the Company or any deferral of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due compensation subject to Code Section 409A is, and has been, properly documented and operated in accordance with Code Section 409A. No individual who has provided services to any Person Purchased Corporation is or has been subject to any Tax or penalty under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.Code Section 409A.
Appears in 1 contract
Employee Plans. (a) Section 3.12(aSchedule 5.20(a) sets forth all pension, savings, retirement, health, insurance, severance and other employee benefit or fringe benefit plans maintained or sponsored by either Seller or any trade or business (whether or not incorporated) under common control with either Seller within the meaning of Sections 414(b), (c), (m) or (o) of the Contributor Disclosure Schedule sets forth a true and complete list Code (the “Controlled Group”), or with respect to which either Seller or any other member of each Company Benefit Plan.
the Controlled Group has any responsibility or liability (bincluding any contingent liability) The Company has previously provided (collectively referred to Local Insight true and complete herein as the “Plans”). With respect to the Plans, the Sellers have delivered to the Buyer copies of: (i) each written Company Benefit Planthe Plan documents, and, where applicable, related trust agreements, and any related agreements which are in writing; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three yearssummary plan descriptions; (iii) the most recent Internal Revenue Service determination letter from the IRS (if applicable) relating to each Plan for each Company Benefit Planwhich a letter of determination was obtained; (iv) to the current summary plan description extent required to be filed, the most recent Annual Report (Form 5500 Series and accompanying schedules of each Company Benefit Plan and applicable financial statements) as filed with the Internal Revenue Service; and (v) audited financial statements, if any.
(b) Each Plan conforms to, has been maintained in accordance with and its administration is in compliance with, its terms and all applicable requirements of federal, state and local law, including, without limitation, ERISA and the Code and all of the Plans are in full force and effect as written.
(c) All premiums, contributions (including all employer contributions and employee salary reduction contributions) and other payments required to be made under the terms of any Plan have been made or accrued by the due date thereof (including any allowed extension) and all contributions for any period ending on or before the Closing Date which are not yet due will have been paid or accrued on or prior to the Closing Date.
(d) Each Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code is so qualified and each trust maintained pursuant thereto is exempt from federal taxation. No Plan that is an employee welfare benefit plan as defined in Section 3(1) of ERISA (a “Welfare Plan”) is funded through a voluntary employee beneficiary association as defined in Section 501(c)(9) of the Code.
(e) Neither either Seller nor any member of the Controlled Group has received ever maintained, contributed to or incurred any liability with respect to any Plan subject to Title IV of ERISA or Section 412 of the Code. Neither either Seller nor any member of the Controlled Group has any liability under Section 4062 of ERISA to the Pension Benefit Guaranty Corporation or to a favorable determination letter from trustee appointed under Section 4042 of ERISA. Neither either Seller nor any member of the IRS, and there Controlled Group has engaged in any transaction described in Section 4069 of ERISA.
(f) There are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” multiemployer plans (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section Subsection 3(37) of ERISA), ) (C“Multiemployer Plans”) to which either Seller or any benefit plan, program, agreement, other member of the Controlled Group is or arrangement that provides for post-retirement or post-termination medical, life insurance has been required to make a contribution or other welfare-type benefits other than as described in Section 3.12(d) payment. Neither either Seller nor any member of the Contributor Disclosure ScheduleControlled Group has withdrawn in a complete or partial withdrawal from any Multiemployer Plan, nor have any of them incurred any liability due to the termination or reorganization of a Multiemployer Plan.
(Dg) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or There has been no non-exempt prohibited transaction (E) “multiple employer plan” within the meaning of Section 210 4975 of the Code or Part 4 of Subtitle B of Title I of ERISA) with respect to any Plan nor any penalty under Section 502(i) of ERISA relating to any Plan.
(h) None of the Plans provides or has ever provided post-retirement health or life insurance benefits except as may be required under Section 4980B of the Code or Section 413(c) 601 of ERISA at the expense of the Code; (iv) no liability participant or the participant’s beneficiary. Neither Seller is liable for Post-Retirement Benefits under Title IV any plan not maintained by either Seller. The Sellers and all other members of the Controlled Group have at all times complied in all material respects with the requirements of Section 4980B of the Code and Sections 601 to 608 of ERISA has relating to continuation coverage for group health plans.
(i) There are no pending actions, claims or lawsuits which have been incurred by a Company ERISA Affiliate that has not been satisfied in fullasserted, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary instituted or, to the Knowledge of each Seller, threatened, against the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the CompanyPlans, the Company Subsidiaries or assets of any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pendingtrusts under such Plans or the Plan sponsor or the Plan administrator, or, to the Knowledge of each Seller, against any fiduciary of the Contributors, threatened or anticipated claims Plans with respect to the operation of such Plans (other than routine claims for benefitsbenefit claims), audits, investigations, proceedings, .
(j) There has been no “mass layoff” or suits by, on behalf of “plant closing” as defined by WARN or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements similar state or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date local “plant closing” law with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason former employees of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentseither Seller.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on Schedule 6.2(i) of the Contributor Intek Disclosure ScheduleSchedules, each Company Benefit Plan has all employee benefit, welfare, bonus, deferred compensation, pension, profit sharing, stock option, employee stock ownership, consulting, severance, or fringe benefit plans, formal or informal, written or oral, and all trust agreements related thereto, relating to any present or former directors, officers or employees of Intek or any Intek Subsidiary (collectively, "Intek Employee Plans") have been maintained, funded operated, and administered in substantial compliance with their terms and currently comply, and have at all relevant times complied, in all material respects with its terms and applicable Law, including ERISA and the Code; , to the extent applicable, and any other applicable laws. With respect to each Intek Employee Plan which is a pension plan (iias defined in Section 3(2) of ERISA), except as set forth in Schedule 6.2(i) of the Intek Disclosure Schedules: each Company Benefit Plan pension plan as amended (and any trust relating thereto) intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan either has been determined by the Internal Revenue Service ("IRS") to be so qualified or is the subject of a pending application for such determination that was timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Companyfiled, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” there is no accumulated funding deficiency (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 302 of ERISA or and Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G 412 of the Code), tax gross-upwhether or not waived, forgiveness and no waiver of indebtedness or otherwise) becoming due to any Person the minimum funding standards of such sections has been requested from the Company IRS, no reportable event described in Section 4043 of ERISA has occurred, no defined benefit plan has been terminated, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate a defined benefit plan or any to appoint a trustee or administrator of a defined benefit plan, and no circumstances exist that constitute grounds under Section 4042 of ERISA entitling the Company Subsidiaries under any Company Pension Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.Guaranty
Appears in 1 contract
Samples: Sale of Assets and Trademark Agreement (Intek Diversified Corp)
Employee Plans. (a) Section 3.12(aSchedule 4.10(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Employee Benefit Plan.
(b) The Company has previously provided delivered the following documents to Local Insight true and complete copies ofPurchaser with respect to each Employee Benefit Plan: (i) each written Company correct and complete copies of all documents embodying such Employee Benefit Plan; , including all amendments thereto, and all related trust documents, (ii) the actuarial report for each Company a written description of any Employee Benefit Plan (if applicable) for each of the last three years; that is not set forth in a written document, (iii) the most recent determination letter from summary plan description together with the IRS (summary or summaries of material modifications thereto, if applicable) for each Company Benefit Plan; any, (iv) the current summary three most recent annual actuarial valuations, if any, (v) all IRS or DOL determination, opinion, notification and advisory letters, (vi) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, (vii) all material correspondence to or from any Governmental Authority received in the last three (3) years, (viii) all discrimination tests for the most recent three (3) plan description years, and (ix) all material written agreements and contracts currently in effect, including administrative service agreements, group annuity contracts, and group insurance contracts.
(c) Each Employee Benefit Plan has been maintained and administered in all respects in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including ERISA and the Code, which are applicable to such Employee Benefit Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Employee Benefit Plans have been timely made or accrued. Each Employee Benefit Plan intended to be qualified under Section 401(a) of the Code and each Company trust intended to qualify under Section 501(a) of the Code is so qualified and has obtained a currently effective favorable determination notification, advisory or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Employee Benefit Plan has been adopted since the date of such letter covering such Employee Benefit Plan that is subject to ERISA; (v) a copy of the description of would adversely affect such favorable determination. The most recent determination notification, advisory or opinion letter for each Company such Employee Benefit Plan has not subject been revoked, and, to ERISA the Company’s Knowledge, no fact or event exists that is currently provided could reasonably be expected to participants result in the revocation of such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsqualified status.
(id) Except as set forth on Schedule 4.10(d), no plan currently or ever in the Contributor Disclosure Schedule, each Company Benefit Plan has been past maintained, funded and administered sponsored, contributed to or required to be contributed to by the Company or its current or former ERISA Affiliates is or ever in compliance in all material respects with its terms and applicable Lawthe past was (i) a Multiemployer Plan, including ERISA and the Code; (ii) each a plan described in Section 413 of the Code, (iii) a plan subject to Title IV of ERISA, (iv) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code.
(e) The Company Benefit Plan intended is not subject to be any liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA. The Company has materially complied with all applicable health care continuation requirements under COBRA. No “qualifiedProhibited Transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Employee Benefit Plan.
(f) Except as set forth on Schedule 4.10(f), no Employee Benefit Plan provides, or reflects or represents any liability to provide, benefits (including death or medical benefits), whether or not insured, with respect to any former or current employee, or any spouse or dependent of any such employee, beyond the employee’s retirement or other termination of employment with the Company other than (i) coverage mandated by COBRA, (ii) retirement or death benefits under any plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRSCode, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation disability benefits that have been fully provided for by insurance under (or with respect to) (A) any an Employee Benefit Plan that constitutes an “defined employee welfare benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 (3)(1) of ERISA ERISA, or (iv) benefits in the nature of severance pay with respect to one or more of the employment contracts set forth on Schedule 4.10(f).
(g) There is no contract, plan or arrangement covering any officer, employee or former officer or employee of the Company that, individually or collectively, could give rise to the payment as a result of the transactions contemplated by this Agreement of any amount that would not be deductible by the Company by reason of Section 413(c) 280G of the Code; (iv) no liability under Title IV . For purposes of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Companyforegoing sentence, the Company Subsidiaries term “payment” shall include any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, obligation to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for fund benefits. Except as set forth on Schedule 4.10(g), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will (either alone or in conjunction together with any other event): event which, standing alone, would not by itself trigger such entitlement or acceleration) will not (i) result entitle any Person to any payment, forgiveness of indebtedness, vesting, distribution, or increase in benefits under or with respect to any Employee Benefit Plan, (ii) otherwise trigger any acceleration (of vesting or payment of benefits or otherwise) under or with respect to any Employee Benefit Plan, or (iii) trigger any obligation to fund any Employee Benefit Plan.
(h) Except as set forth on Schedule 4.10(h), no action, suit or claim (excluding claims for benefits incurred in the Company ordinary course) has been brought or is pending or threatened against or with respect to any Employee Benefit Plan or the assets or any fiduciary thereof (in that Person’s capacity as a fiduciary of such Employee Benefit Plan). There are no audits, inquiries or proceedings pending or threatened by the Company Subsidiaries being liable for IRS, DOL, or other Governmental Entity with respect to any payment or benefit Employee Benefit Plan.
(including non-deductible remuneration i) With respect to each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as described in defined for purposes of Section 162(m409A(d)(1) of the Code) severance), retentionsuch plan has been maintained and operated in compliance with Section 409A of the Code and the applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any tax, stayinterest or penalty thereunder. Except as set forth on Schedule 4.10(i), no member of the Company holds Interests that are non-put, change forfeitable and subject to a substantial risk of control, unemployment compensation, “excess parachute payment” (forfeiture within the meaning of Section 280G 83 of the Code), tax gross-up, forgiveness of indebtedness or otherwiseCode with respect to which a valid election under Section 83(b) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanCode has not been made.
Appears in 1 contract
Employee Plans. (a) Section 3.12(aSchedule 5.16(a) identifies each Employee Plan and Employee Benefit Arrangement. Seller has furnished or made available to Buyer copies of the Contributor Disclosure Employee Plans, Employee Benefit Arrangements and all amendments thereto together with, where applicable, (i) the most recent annual report prepared in connection with any Employee Plan (Form 5500 including, if applicable, Schedule sets forth a true B thereto), and complete list (ii) each Employee Plan's summary plan description and any summaries of material modifications thereto. For the past six (6) years, each Company Employee Plan and each Employee Benefit PlanArrangement is and has been maintained, administered, operated and funded in all material respects in accordance with it terms and in <PAGE> 27 compliance with all applicable requirements of all applicable Laws, including, without limitation, ERISA and the Code.
(b) The Company Neither Seller, nor any entity aggregated with Seller under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (each such entity, a "Related Employer"), except as could not reasonably be expected to have a Material Adverse Effect, has previously provided to Local Insight true and complete copies of: incurred (i) each written Company Benefit Plan; any liability under Title IV of ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA, (ii) the actuarial report for each Company Benefit Plan (if applicable) for each any liability under Section 302 of ERISA or Section 412 of the last three years; Code, or (iii) any liability as a result of the most recent failure to comply with the continuation of coverage requirements of Section 601 et. seq. of ERISA and Section 4980B of the Code, that in any such case would become a Liability of Buyer after the Closing Date.
(c) No Employee Plan or Employee Benefit Arrangement covering Business Employees provides any Business Employee with medical or death benefits beyond termination of service or retirement, other than (i) coverage mandated by law, or (ii) death or retirement benefits under a benefit plan qualified under Section 401(a) of the Code.
(d) Each Employee Plan, which is intended to be qualified under Section 401(a) of the Code, is so qualified, and, to the Knowledge of Seller, there is no reason why any such plan would not be or remain qualified in form or operation. Each such Employee Plan (i) is the subject of an unrevoked favorable determination letter from the Internal Revenue Service ("IRS") with respect to such Employee Plan's qualified status under the Code (as amended by all legislation to date) or (ii) has remaining a period of time under the Code or applicable treasury regulations promulgated thereunder or IRS (if applicable) pronouncements in which to apply to the IRS for each Company Benefit Plan; (iv) such a letter and to make any amendments necessary to obtain such a letter from the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) IRS. Seller has furnished Buyer with a copy of the description of most recent such letter issued with respect to each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Employee Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(ie) Except as set forth on the Contributor Disclosure ScheduleSchedule 5.16(e), each Company Benefit no Employee Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” covering any Business Employee is a multiemployer plan within the meaning of Section 401(a4001(a)(3) of ERISA ("Multiemployer Plan"); and neither Seller, nor any entity aggregated with Seller under Section 414(b) or (c) of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) 4001 of ERISA, has at any time during the six (6) year period preceding the Closing Date, participated in, contributed to or (E) “multiple employer plan” within the meaning been obligated to contribute to any Multiemployer Plan on behalf of Section 210 of ERISA Non-Union Business Employees, or Section 413(c) of the Code; (iv) no incurred any withdrawal liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, . Seller and no condition exists each Related Employer have timely made all contributions that presents a risk each of them has been required to make by operation Law or by contract to each Multiemployer Plan covering any Business Employees in which any of them participates (or to which any of them contributes or is obligated to contribute). The consummation of the Company, Transactions in accordance with the Company Subsidiaries terms of this Agreement or any other Company ERISA Affiliate related agreement will not result in a complete or partial withdrawal, within the meaning of incurring a liability thereunder; (v) none Section 4203 or 4205 of ERISA, by Seller or any Related Employer from any Multiemployer Plan so as to result in any Liability of Buyer after the Company, any Company Subsidiary or, to Closing Date. To the Knowledge of Seller (after consulting with a representative of the ContributorsIAMAW Pension Plan), were Seller and all Related Employers to completely withdraw, within the meaning of Section 4203 of ERISA, from all Multiemployer Plans covering Business Employees in which any other Personof them participates (or to which any of them contributes or is obligated to contribute) on the date hereof, including none of them <PAGE> 28 would incur any fiduciarywithdrawal liability under Subtitle E of Title IV of ERISA. There has been no decline in contributions by Seller or any Related Employer to any Multiemployer Plan that, has engaged if continued, could result in a transaction complete or taken partial withdrawal, within the meaning of Section 4203 or failed to take any action 4205 of ERISA, from such Multiemployer Plan in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to future. To the Knowledge of Seller (after consulting with a representative of the ContributorsIAMAW Pension Plan), threatened no Multiemployer Plan covering Business Employees in which any Seller or anticipated Related Employer participates (or to which Seller or any Related Employer contributes or is obligated to contribute) is in reorganization status, within the meaning of Section 4241 of ERISA, or insolvent, within the meaning of Section 4245 of ERISA. Neither Seller nor any ERISA Affiliate has been notified by any Multiemployer Plan covering Business Employees that such plan intends to terminate or has been terminated under Section 4041A of ERISA.
(f) There are no actions, suits or claims (other than routine claims for benefits)) pending or, auditsto the Knowledge of Seller, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date threatened with respect to each Company (or against the assets of) any Employee Plan or Employee Benefit Plan have Arrangement. Seller has not been made or properly accrued; (viii) notified by the CompanyIRS, the Company Subsidiaries and Department of Labor ("DOL") or any other Governmental or Regulatory Body, that any Employee Plan or Employee Benefit Arrangement is currently under investigation, audit or review, directly or indirectly, by such Governmental or Regulatory Body, and, to the Knowledge of Seller, no such investigation, audit or review is under way or threatened by the IRS, the DOL or any other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current Governmental or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsRegulatory Body.
(dg) Except as described Notwithstanding anything in this Section 3.12(d5.16 to the contrary, the representations and warranties set forth in the last sentence of Section 5.16(a), Section 5.16(d) and the first sentence of Section 5.16(f) are limited to the Knowledge of Seller (after consulting with a representative of the Contributor Disclosure Schedule, neither IAMAW Pension Plan) insofar as they pertain to the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit IAMAW Pension Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Esterline Technologies Corp)
Employee Plans. (a) Section 3.12(a) of Schedule 4.1.18 to the Contributor Disclosure Schedule hereto sets forth a true and complete list of all Employee Plans and Benefit Arrangements maintained, administered or contributed to, or otherwise participated in, by Company. True and complete copies of each Company such Employee Plan or Benefit Plan.
(b) The Company has previously Arrangement, including amendments thereto, have been provided to Local Insight FNFI, together with true and complete copies of: of (i) each written Company Benefit Planannual reports for the most recent three (3) years (Form 5500 Series including, if applicable, Schedules A and B thereto); (ii) all plan documents and the actuarial report for most recent summary plan description of each Company Benefit Plan (if applicable) for each of the last three yearssuch Employee Plan, together with any modifications thereto; and (iii) the most recent favorable determination letter from the IRS (if applicable) from the Internal Revenue Service for each Company Benefit such Employee Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy . None of the description of each Company Benefit Plan not subject to ERISA that Employee Plans is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “"multiemployer plan” (" as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, ERISA or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “a "multiple employer plan” within the meaning of " as covered in Section 210 of ERISA or Section 413(c412(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a , and the Company ERISA Affiliate that has not been satisfied obligated to make a contribution to any such multiemployer or multiple employer plan. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to each such Employee Plan or Benefit Arrangement and all contributions for any period ending on or before the Closing Date which are not yet due have been paid to each such Employee Plan or Benefit Arrangement or accrued in fullaccordance with past custom and practice of Company. Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and each trust maintained pursuant thereto is exempt from income tax under Section 501(a) of the Code. Neither Company nor any Employee Plan, and no condition exists that presents a risk to the Companynor any trusts created thereunder, the Company Subsidiaries or nor any trustee, administrator nor any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciaryfiduciary thereof, has engaged in a transaction or taken or failed to take any action "prohibited transaction," as defined in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) 406 of ERISA or a material Tax imposed pursuant to and Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planfiduciary duty as defined in Part 4 of Subtitle B of Title I of ERISA.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity National Financial Inc /De/)
Employee Plans. (a) Section 3.12(a) of the Contributor The Seller Disclosure Schedule Letter sets forth a list of each material U.S. Warner Employee Plan.
(b) With respect to each material U.S. Warner Employee Plan, the Seller has provided or made available to the Purchaser a copy (or a true, complete and current summary description) thereof and, to the extent applicable: (i) the most recent IRS determination letter; (ii) a summary of any material proposed changes anticipated to be made at any time within the twelve months immediately following the date hereof; and (iii) for the two most recent years (A) the Form 5500 and attached schedules and (B) summary financial data. Seller has also provided to Purchaser a true and complete list of all Warner Employees whose total guaranteed annual compensation currently exceeds $750,000 and the aggregate termination costs if such Warner Employees who currently earn more than $750,000 annually were terminated effective July 1, 2004. For purposes of this Section 3.18, a Warner Employee Plan is “material” if (x) it is a defined benefit pension plan maintained in Germany or Japan or a defined benefit pension plan maintained in a country other than Germany or Japan with respect to which, as of the date of this Agreement, there is an accrued liability (on a “PBO” basis) of $25 million or more (regardless of whether such liability is funded) or (y) it is a defined contribution pension plan with respect to which there is, as of the date of this Agreement, an unfunded accrued liability that (A) exceeds $10 million or (B) does not exceed $10 million but, when taken together with such unfunded accrued liabilities of all Warner Employee Plans that are defined contribution pension plans (other than those described in clause (A)), exceeds $50 million. Copies of all Warner Employee Plans and all Seller Employee Plans (or, in each Company Benefit Plancase, if no plan document exists, a true, complete and current summary plan description or, if none exists, a true, complete and current summary description) in each case under which any severance or vacation benefits are provided will be delivered or made available to Purchaser as soon as practicable after the date hereof.
(bc) The Company Except as has previously provided not had and could not reasonably be expected to Local Insight true and complete copies of: have, individually or in the aggregate, a Material Adverse Effect, (i) each written Company Benefit Warner Employee Plan; (ii) the actuarial report for , each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan Material Contract that is subject a Warner Employment Agreement and each Seller Employee Plan with respect to ERISA; (vwhich the Acquired Companies have any obligation under Section 5.01(b) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedulehereof, each Company Benefit Plan has been maintained, funded and administered maintained in substantial compliance in all material respects with its terms and with the requirements prescribed by any and all applicable Lawstatutes, orders, rules and regulations, including ERISA and the Codeany applicable requirements of any relevant regulatory or fiscal body; (ii) each Company Benefit Warner Employee Plan which is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination letter from the IRSas to its qualification, and there are no circumstances nothing has occurred, whether by action or failure to act, that would could reasonably be expected to adversely affect cause the qualified status loss of any such Company Benefit Plan, qualification; and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none no event has occurred and no condition exists that would subject the Acquired Companies, either directly or by reason of their affiliation with any member of their “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the CompanyCode), to any Company SubsidiaryTax, fine, lien or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or penalty imposed by applicable Law in connection with a Seller Employee Plan. For each pension Warner Employee Plan with respect toto which a Form 5500 has been filed, no material change has occurred with respect to the matters covered by the most recent Form since the date thereof.
(d) With respect to any Seller Employee Plan that is a U.S. multiemployer plan (A) any “defined benefit plan” (as defined in within the meaning of Section 3(354001(a)(3) of ERISA), (B) any “multiemployer plan” (except as defined in Section 3(37) of ERISA)has not had and could not reasonably be expected to have a Material Adverse Effect, (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) none of the Contributor Disclosure Schedule, (D) Acquired Companies has incurred any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries which remains unsatisfied or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or such liability as of the Closing Date if any Acquired Company were to engage as of the Closing Date in a complete withdrawal (as defined in Section 4203 of ERISA) or partial withdrawal (as defined in Section 4205 of ERISA) from any such U.S. multiemployer plan.
(e) Neither Seller nor any of its Affiliates (including the Acquired Companies) has any knowledge of any material (i) strikes, (ii) slowdowns, (iii) work stoppages, (iv) lockouts or (v) threats of any of the foregoing, by or with respect to any Warner Employees.
(f) Schedule 3.18(f) of the Seller Disclosure Letter sets forth a list of each Company material Warner Employee Plan maintained outside the jurisdiction of the United States, or which covers any employee residing or working outside the United States (the “Foreign Benefit Plan Plans”). With respect to any Foreign Benefit Plans, except as has not had and could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) all Foreign Benefit Plans have been made or properly accrued; (viii) the Companyestablished, the Company Subsidiaries maintained and the other Company ERISA Affiliates have complied and are administered in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code their terms and all applicable IRS guidance thereunderstatutes or Laws; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.and
Appears in 1 contract
Samples: Purchase Agreement (CPP/Belwin, Inc)
Employee Plans. (a) Section 3.12(a3.10(a) of the Contributor Company Disclosure Schedule sets forth a true true, correct and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such employee benefit plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of ERISA Section 3(3) whether or not subject to ERISA, and each other benefit program, policy, agreement, understanding, arrangement, policy, practice or plan (whether written or oral) providing compensation or benefits to any current or former director, employee or consultant (or any dependent or beneficiary thereof), including employment agreements, bonuses, incentive compensation, change in control benefits, vacation, severance, insurance, cafeteria, medical, disability, restricted stock, stock options, employee discounts, company cars, tuition reimbursement, stock purchase, stock appreciation, phantom stock, other stock-based compensation plans, programs or policies, holiday, deferred compensation or any other perquisite or benefit (collectively, the “Employee Programs”), which is currently, or since the Company’s formation was, maintained, sponsored or contributed to (or with respect to which any obligation to contribute has been undertaken) by the Company or any ERISA Affiliate. Each Employee Program that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service (the “IRS”) regarding its qualification thereunder and, to the Company’s knowledge, no event has occurred and there are no circumstances condition exists that would is reasonably be expected to adversely affect result in the qualified status revocation of any such determination.
(b) With respect to each Employee Program, the Company Benefit Planhas provided, or made available, to Parent (if applicable to such Employee Program) true, correct and complete copies of: (i) all documents embodying or governing such Employee Program (or, if not written, a written summary of its material terms), and each such Company Benefit Plan has been timely amended any funding medium for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted Employee Program (including, without limitation, trust agreements); (ii) the most recent IRS determination or opinion letter with respect to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment periodsuch Employee Program under Code Section 401(a); (iii) none the three (3) most recently filed IRS Form 5500, if applicable; (iv) the most recent summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) all material correspondence with the Department of Labor or the IRS; (vi) any insurance policy information related to such Employee Program and (vii) the most recent actuarial report or financial statements relating to such Employee Program, if any.
(c) Each Employee Program complies with and has been administered in accordance with its terms and the requirements of applicable law, including, without limitation, ERISA and the Code (including, without limitation, Section 409A of the Code), except as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect. With respect to each Employee Program, all tax, annual reporting and other governmental filings required by ERISA and the Code have been timely filed with the appropriate governmental entity and all notices and disclosures have been timely provided to participants. With respect to the Employee Programs, no event has occurred and, to the knowledge of Company, there exists no condition or set of circumstances in connection with which the Company could be subject to any Company Subsidiaryliability (other than for routine benefit liabilities) under the terms of, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) , such Employee Programs, ERISA, the Code or any “defined benefit plan” (other applicable Law, except as defined would not reasonably be likely to have, individually or in Section 3(35) of ERISA)the aggregate, (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) a Company Material Adverse Effect. No Employee Program is subject to Title IV of ERISA, or (E) “multiple employer plan” is an employee stock ownership plan within the meaning of Section 210 of ERISA or Section 413(c4975(e)(7) of the Code; (iv) no liability under Title IV , a voluntary employees’ beneficiary association or is a multiemployer plan, within the meaning of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits3(37), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described set forth in Section 3.12(d3.10(d) of the Contributor Company Disclosure Schedule, full payment has been made, or otherwise properly accrued on the books and records of the Company and any ERISA Affiliate, of all amounts that the Company and any ERISA Affiliate are required under the terms of the Employee Programs to have paid as contributions to such Employee Programs on or prior to the Closing Date (excluding any amounts not yet due) and the contribution requirements, on a prorated basis, for the current year have been made or otherwise properly accrued on the books and records of the Company through the Closing Date.
(e) No material liability, claim, action or litigation has been made, commenced or, to the knowledge of the Company, threatened with respect to any Employee Program (other than for benefits payable in the ordinary course of business).
(f) Except as set forth in Section 3.10(a) of the Company Disclosure Schedule, no Employee Program provides for medical, life insurance or other welfare plan benefits (other than under Section 4980B of the Code or state health continuation laws) to any current or future retiree or former employee and all such plans have effectively reserved the right to amend or terminate such plans without participant consent.
(g) All Company Stock Options have an exercise price per share that was not less than the “fair market value” of a Company Share on the date of grant, as determined in accordance with the terms of the applicable Employee Program and, to the extent applicable, Sections 409A and 422 of the Code. All Company Stock Options have been properly accounted for by the Company in accordance with GAAP, and no change is expected in respect of any prior Company financial statement relating to expenses for stock compensation. To the Company’s knowledge, there is no pending or threatened audit, investigation or inquiry by any governmental agency or by the Company with respect to the Company’s stock option granting practices or other equity compensation practices.
(h) Except as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, the Company has withheld and paid all amounts required by applicable Law or by agreement to be withheld from the wages, salaries, and other payments to employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company or any of the Company Subsidiaries as employees or non-employees for all relevant purposes.
(A) Except as set forth in Section 3.10(i)(A) of the Company Disclosure Schedule or as contemplated in Section 2.1(e) hereof, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in any payment, acceleration or creation of any rights of any person to benefits under any Employee Program; (B) except as set forth in Section 3.10(i)(B) of the Company Disclosure Schedule, no amount that could be received (whether in cash, property, the vesting of property or otherwise) as a result of or in connection with the consummation of the transactions contemplated by this Agreement will (either alone or in conjunction combination with any other event): (i) result in ), by any employee, officer, director or other service provider of the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration who is a “disqualified individual” (as described such term is defined in Treasury Regulation Section 1.280G-1) could reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code); and (C) except as set forth in Section 3.10(i)(C) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is a party to any contract, agreement, plan or arrangement covering any persons that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would constitute compensation in excess of the limitations set forth in Section 162(m) of the Code.
(j) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise3.10(j) becoming due to any Person from the Company or any of the Company Subsidiaries under any Disclosure Schedule sets forth a true, correct and complete list of (i) all Company Benefit Plan or otherwise; Restricted Shares that are subject to vesting conditions on the date hereof and will be vested and no longer subject to repurchase by the Company at the Effective Time, and (ii) increase any amounts all Company Stock Options, including the exercise price thereof, that are unexercised and outstanding on the date hereof and will be vested and exercisable at the Effective Time, assuming in the case of clauses (i) and (ii) above, that no other event or benefits otherwise payable circumstance occurs that would cause such Company Restricted Shares or due Company Stock Options to any Person under any Company Benefit Plan be forfeited by the holder, exercised by the holder or otherwise; or (iii) result in any acceleration of repurchased by the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanCompany.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a4.14(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Planall material Employee Plans. None of the Employee Plans has undergone within the last six years or is undergoing an audit or investigation (nor has notice been received of a potential audit or examination) by either the IRS, the United States Department of Labor or any other Authority.
(b) The Company has previously provided With respect to Local Insight true each Employee Plan, complete and complete correct copies ofof the following documents have been made available to Purchaser: (i) the most recent plan documents or written agreements thereof, and all amendments thereto and all related trust or other funding vehicles with respect to each such Employee Plan and, in the case of any Employee Plan that is not in written form, a description of all material aspects of such plan; (ii) the most recent summary plan description, and all related summaries of material modifications thereto, if applicable; (iii) the three most recent annual reports on Form 5500 (including schedules and attachments), financial statements and actuarial reports for the past three years, if applicable; (iv) the nondiscrimination testing results for the past three plan years; (v) the most recent IRS determination letter and any pending application with respect to each such Employee Plan which is intended to qualify under Section 401(a) of the Code; and (vi) for the last three years, all material correspondence with the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation, SEC or any other Authority regarding the operation or the administration of any Employee Plan, other than correspondence relating to matters in the ordinary course of business.
(c) With respect to each Employee Plan: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects in compliance with its terms and with all applicable LawLaws, including ERISA and the Code; (ii) each Company Benefit no Legal Actions (other than routine claims for benefits) are pending, or to the Company’s Knowledge threatened; (iii) all material premiums, contributions, or other payments required to have been made by Law or under the terms of any Employee Plan intended or any Contract or agreement relating thereto as of the Signing Date have been made or properly accrued in accordance with GAAP; (iv) all material reports, returns and similar documents required to be filed with any Authority or distributed to any plan participant have been duly filed or distributed; and (v) no “qualifiedprohibited transaction” or “reportable event” has occurred within the meaning of the applicable provisions of ERISA or the Code that could reasonably be expected to result in a material liability to the Company or Purchaser or any of its Affiliates.
(d) With respect to each Employee Plan intended to qualify under Section 401(a) of the Code Code, (i) the IRS has received issued a favorable determination letter from or opinion letter or advisory letter upon which the IRSCompany is entitled to rely under IRS pronouncements, and there are (ii) no circumstances such determination letter, opinion letter or advisory letter has been revoked nor has revocation been threatened and, no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit qualification or exemption.
(e) No Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation is nor was within the applicable remedial amendment period; (iii) none of past six years, nor do Seller, the Company, any Company Subsidiary, or any other Company of their ERISA Affiliate maintains, sponsors, contributes to, Affiliates have or has reasonably expect to have any current or potential liability or obligation under (or with respect to) (Ai) any “defined employee benefit plan” (as defined in plan subject to Section 3(35) 412 of the Code or Section 302 or Title IV of ERISA); or (ii) any Multiemployer Plan, (Biii) any “multiemployer plan” (as defined in a multiple employer plan within the meaning of Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) 413 of the Contributor Disclosure Schedule, Code or (Div) any “a multiple employer welfare arrangement” arrangement as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Dolphin Entertainment, Inc.)
Employee Plans. (a) Section 3.12(a3.18(a) of the Contributor Company Disclosure Schedule sets forth contains a true correct and complete list of each material Company Benefit Plan subject to the laws of the United States. No later than thirty (30) days following the date of this Agreement, the Company shall provide or make available to Parent a complete list of each material Foreign Company Benefit Plan.
(b) The Company has previously provided or made available to Local Insight Parent with respect to each and every material Company Benefit Plan subject to the laws of the United States a true and complete copies of: copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the extent applicable, (i) each written the most recent determination letter received by the Company or any of its Subsidiaries from the IRS regarding the tax-qualified status of such Company Benefit Plan; (ii) the actuarial report most recent financial statements for each such Company Benefit Plan (if applicable) for each of the last three yearsPlan; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Planactuarial valuation report; (iv) the current summary plan description and any summaries of material modifications; and (v) Form 5500 Annual Returns/Reports, together with all schedules thereto, for the most recent plan year. No later than thirty (30) days following the date of this Agreement, the Company shall provide or make available to Parent all plan documents with respect to each material Foreign Company Benefit Plan or a written summary of such plan.
(c) With respect to each Company Benefit Plan that is a “single-employer plan” (within the meaning of Section 3(41) of ERISA) and is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) the minimum funding standards (within the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA) are satisfied, whether or not waived, and no application for a waiver of the minimum funding standard has been submitted to the IRS; (ii) no “reportable event” (within the meaning of Section 4043(c) of ERISA) for which the 30-day notice requirement has not been waived has occurred; (iii) no liability other than for premiums to the Pension Benefit Guarantee Corporation (“PBGC”) under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any of its ERISA Affiliates, and all premiums to the PBGC have been timely paid in full; (iv) the PBGC has not instituted proceedings to terminate any such plan, and, to the Knowledge of the Company, 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 administer, any such plan; (v) a copy no such plan is currently, or is reasonably expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such planCode); (vi) a summary the fair market value of the material terms assets and liabilities of each unwritten such plan has been reported in accordance with GAAP by the Company Benefit Planon the most recent financial statements of the Company; and (vii) neither the annual report for Company nor its Subsidiaries have engaged in a “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such event. None of the Company or any of its ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to a “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer 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. None of the Company or any of its ERISA Affiliates has withdrawn at any time within the preceding six years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that would reasonably be expected to result in any such liability to the Company or any of its Subsidiaries.
(d) With respect to each Company Benefit Plan (if applicablethat is intended to qualify under Section 401(a) for each of the last three yearsCode, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, or such plan has been adopted under a prototype plan or volume submitter plan approved by the IRS, and nothing has occurred with respect to the operation of any such plan which 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.
(ie) Except as set forth on There are no pending or, to the Contributor Disclosure ScheduleKnowledge of the Company, each threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan subject to the laws of the United States or against any fiduciary of any Company Benefit Plan subject to the laws of the United States with respect to the operation of such plan (other than routine benefits claims). Except as would not reasonably be expected to result in a Company Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened actions, claims or lawsuits against or relating to any Foreign Company Benefit Plan or against any fiduciary of any Foreign Company Benefit Plan with respect to the operation of such plan (other than routine benefits claims).
(f) Each Company Benefit Plan subject to the laws of the United States has been maintained, funded established and administered in all material respects in accordance with its terms, and in compliance in all material respects with its terms the applicable provisions of ERISA, the Code and other applicable Lawlaws, including and all contributions required to have been made under any of the Company Benefit Plans subject to the laws of the United States to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Company’s financial statements.
(g) None of the Company Benefit Plans subject to the laws of the United States provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable law or at the expense of the participant or the participant’s beneficiary. There has been no material violation of the “continuation coverage requirement” of “group health plans” as set forth in Section 4980B of the Code and the Code; (ii) each Part 6 of Subtitle B of Title I of ERISA with respect to any Company Benefit Plan intended to be “qualified” within the meaning of Section 401(awhich such continuation coverage requirements apply.
(h) of the Code has received a favorable determination letter from the IRSExcept as provided in this Agreement (and, and there are no circumstances that would reasonably be expected with respect to adversely affect the qualified status of any such Company Benefit Plan, and each such Foreign Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none or employees of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) outside of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary orUnited States only, to the Knowledge of the ContributorsCompany), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any other Personpayment becoming due, including or increase the amount of any fiduciarycompensation or benefits due, has engaged in a transaction to any current or taken or failed to take any action in connection with which the Company, former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan would reasonably be expected to be subject to either Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits; or (iv) trigger any payment or funding (through a material civil penalty assessed pursuant to Section 409 grantor trust or 502(iotherwise) of ERISA any compensation or a material Tax imposed pursuant to benefits under any Company Benefit Plan.
(i) No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4975 409A or 4976 4999 of the Code; .
(vij) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, Except as set forth on behalf of or against any Section 3.18(j) of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby or thereby will (either alone or in conjunction combination with any other another event): (i) result in the Company payment of any amount that would, individually or in combination with any of the Company Subsidiaries being liable for any payment or benefit (including non-other such payment, not be deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning a result of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise.
(k) becoming due Except as would not reasonably be expected to any Person from result in a material liability to the Company or its Subsidiaries, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in documentary compliance with, and has been administered (i) in good faith compliance with Section 409A of the Code for the period beginning October 1, 2004 through December 31, 2008, and (ii) in compliance with Section 409A of the Code since January 1, 2009.
(l) With respect to any Company RSU Award, (i) each grant of a Company RSU Award was duly authorized no later than the date on which the grant of such Company RSU Award was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Board of Directors of the Company, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the stockholders of the Company Subsidiaries under any by the necessary number of votes or written consents, and the award agreement governing such grant, if any, was duly executed and delivered by each party thereto within a reasonable time following the Grant Date, and (ii) each such grant was made in accordance with the terms of the applicable Company Benefit Plan (including the applicable Company Stock Plan), the Exchange Act and all other applicable law, including the rules of NYSE.
(m) Except as would not reasonably be expected to result in a material liability to the Company or otherwise; its Subsidiaries, all Company Benefit Plans subject to the laws of any jurisdiction outside of the United States (each a “Foreign Company Benefit Plan”) (i) have been maintained in accordance with all applicable requirements, (ii) increase any amounts or benefits otherwise payable or due that are intended to any Person under any Company Benefit Plan or otherwise; or qualify for special Tax treatment, meet all requirements for such treatment, and (iii) result in any acceleration that are intended to be funded and/or book-reserved, are fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
(n) As of October 14, 2016, there are (i) 302,877 shares of Company Common Stock underlying outstanding and unvested Company RSU Awards granted (A) prior to April 1, 2014 and (B) to non-employee members of the time Board of payment Directors of the Company, in each case, all of which Company RSU Awards are service-based, (ii) 3,463,845 shares of Company Common Stock underlying outstanding and unvested service-based Company RSU Awards granted on or vesting ofafter April 1, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under 2014 (other than any Company Benefit PlanRSU Award granted to a non-employee member of the Board of Directors of the Company), (iii) 1,577,767 shares of Company Common Stock underlying outstanding and unvested performance-based Company RSU Awards granted on or after April 1, 2014, assuming target performance (or actual performance to the extent the performance criteria has already been satisfied), and (iv) 2,666,136 shares of Company Common Stock underlying unvested performance-based Company RSU Awards granted on or after April 1, 2014, assuming maximum performance.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a4.14(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Planall material Employee Plans. None of the Employee Plans has undergone within the last six years or is undergoing an audit or investigation (nor has notice been received of a potential audit or examination) by either the IRS, the United States Department of Labor or any other Authority.
(b) The Company has previously provided With respect to Local Insight true each Employee Plan, complete and complete correct copies ofof all material documents have been made available to Purchaser, including the most recent plan documents or written agreements thereof and the most recent summary plan descriptions.
(c) With respect to each Employee Plan: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects in compliance with its terms and with all applicable LawLaws, including ERISA and the Code; (ii) each Company Benefit no Legal Actions (other than routine claims for benefits) are pending, or to the Company’s Knowledge threatened; (iii) all material premiums, contributions, or other payments required to have been made by Law or under the terms of any Employee Plan intended or any Contract or agreement relating thereto as of the Closing Date have been made or properly accrued in accordance with GAAP; (iv) all material reports, returns and similar documents required to be filed with any Authority or distributed to any plan participant have been duly filed or distributed; and (v) no “qualifiedprohibited transaction” or “reportable event” has occurred within the meaning of the applicable provisions of ERISA or the Code that could reasonably be expected to result in a material liability to the Company or Purchaser or any of its Affiliates.
(d) With respect to each Employee Plan intended to qualify under Section 401(a) of the Code Code, (i) the IRS has received issued a favorable determination letter from or opinion letter or advisory letter upon which the IRSCompany is entitled to rely under IRS pronouncements, and there are (ii) no circumstances such determination letter, opinion letter or advisory letter has been revoked nor to the Company’s Knowledge, has revocation been threatened and, no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit qualification or exemption.
(e) No Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation is nor was within the applicable remedial amendment period; (iii) none of past six years, nor do Seller, the Company, any Company Subsidiary, or any other Company of their ERISA Affiliate maintains, sponsors, contributes to, Affiliates have or has reasonably expect to have any current or potential liability or obligation under (or with respect to) (Ai) any “defined employee benefit plan” (as defined in plan subject to Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) 412 of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA Code or Section 413(c) of the Code; (iv) no liability under 302 or Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries ERISA; or (ii) any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Multiemployer Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will not (either alone or in conjunction combination with any other another event): ) (i) result in the Company entitle any current or any former employee, consultant, officer or director of the Company Subsidiaries being liable for to severance pay, (ii) result in any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under Company’s Affiliates becoming due, or increase the amount of any Company Benefit Plan compensation due, to any current or otherwise; former employee, officer, director or consultant of the Company, (iiiii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or Employee Plan, (iiiiv) result in any the acceleration of the time of payment or vesting of, of any compensation or benefits from the Company or any requirement of the Company’s Affiliates to fund any current or secureformer employee, any amounts officer, director or benefits consultant of the Company or (v) result in any breach forgiveness of or default indebtedness, trigger any funding obligation under any Company Benefit Employee Plan or impose any restrictions or limitations on the Company’s right to administer, amend or terminate any Employee Plan.
(g) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or in combination with another event) result in any payment or deemed payment (whether in cash, property, the vesting of property or otherwise) 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). No Person is entitled to receive any additional payment (including any tax gross-up or other payment) from the Company or its Affiliates as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(h) No Employee Plan provides health, medical, or death benefits to current or former employees of the Company beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985 or as required to avoid the excise Tax under Section 4980B of the Code, or coverage mandated by any similar state group health plan continuation Law, the cost of which is fully paid by such current or former employees or their dependents.
(i) The Company and each Employee Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) (i) is currently in compliance, in all material respects, with the Patient Protection and Affordable Care Act, Pub.
Appears in 1 contract
Samples: Share Purchase Agreement (Dolphin Entertainment, Inc.)
Employee Plans. (a) Section 3.12(a5.11(a) of the Contributor Company Disclosure Schedule Schedules sets forth a true and complete list of all Employee Benefit Plans (including, for each Company such Employee Benefit Plan.
(b) The Company has previously provided , identifying its jurisdiction). With respect to Local Insight each Employee Benefit Plan, the Group Companies have made available to SPAC true and complete copies of: of the material documents pursuant to which the plan is maintained, funded and administered, including, for each Employee Benefit Plan, to the extent applicable, (i) each written Company Benefit Plan; the most recent plan document and all amendments thereto, (ii) the actuarial report for each Company Benefit Plan most recent funding agreement (if applicable) for each of the last three years; including any trust Contract or insurance Contract), (iii) the most recent determination letter from the IRS service provider Contracts (if applicable) for each Company Benefit Plan; including third-party administrative services, record-keeper, investment management and other services Contracts), (iv) copies of the current most recent summary plan description and any summaries of each Company Benefit Plan that is subject to ERISA; material modifications, (v) a copy copies of the description of IRS Form 5500 annual report and accompanying schedules and nondiscrimination testing results, in each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; case, for the two (2) most recent plan years, (vi) a summary copies of the most recently received IRS determination, opinion or advisory letter for each such Employee Benefit Plan,(vii) the most recently prepared actuarial valuation report, (viii) all material terms of each unwritten Company Benefit Plan; correspondence with any applicable Governmental Entity for the current year and the previous three (3) years, and (viiix) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsmost recent employee booklet or employee handbook.
(ib) Except as set forth on has not been or would not reasonably be expected to be, individually or in the Contributor Disclosure Scheduleaggregate, each Company Benefit Plan material to the Group Companies, taken as a whole, no member of the Group Companies nor any ERISA Affiliate currently sponsors, maintains or contributes to, nor has, within the past six (6) years, sponsored, maintained or been required to contribute to, nor has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; any liability or obligation (iicontingent or otherwise) each Company Benefit Plan intended to be “qualified” under (i) a multiemployer plan (within the meaning of Section 401(a3(37) of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(354001(a)(3) of ERISA), (Bii) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation pension plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G 4001(a)(15) of ERISA) subject to Section 412 of the Code)Code or Title IV of ERISA, tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration a multiple employer plan subject to Section 413(c) of the time of payment Code or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default (iv) a multiple employer welfare arrangement under any Company Benefit Plan.ERISA as defined under Section 3(40)
Appears in 1 contract
Employee Plans. (a) Set forth in Section 3.12(a4.15(a) of the Contributor Company Disclosure Schedule sets forth is a true complete and complete correct list of each Company Benefit Plan. The Company has made available to Purchaser, to the extent applicable, with respect to each Company Plan (i) the plan document and all amendments thereto (or, in the case of any unwritten Company Plan a written summary thereof), (ii) the most recently disseminated summary plan description and an explanation of any material plan modifications made after the date thereof, (iii) the trust agreement, (iv) the three (3) most recent Form 5500 Annual Reports, (v) non-discrimination testing results on the Company’s 401(k) Plan for the three (3) most recent plan years, (vi) for each Company Plan which is intended to be a “qualified plan” under Section 401 of the Code, the most recent determination letter received from the IRS, and (vii) all related Contracts, insurance Contracts, and other Contracts by which such Company Plan is established, operated, administered, or funded. The Company does not have any formal plan or commitment, whether legally binding or not, to create any additional Company Plan or modify or change any existing Company Plan.
(b) The Company does not have any ERISA Affiliates.
(c) Each Company Plan materially complies in form and has previously provided to Local Insight true been materially maintained and complete copies of: (i) each written Company Benefit Plan; (ii) operated in accordance with the actuarial report for requirements of all applicable Laws, including ERISA and the Code, if applicable, and each Company Plan has been maintained and operated in accordance with its terms.
(d) All required reports and descriptions (including, without limitation, Form 5500 Annual Reports, summary annual reports, and summary plan descriptions) have been timely filed with the appropriate Government Entities and distributed appropriately to participants and beneficiaries with respect to each Company Plan. The requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) have been met with respect to each Company Plan that is an Employee Welfare Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan and that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsrequirements.
(e) All contributions (including all employer contributions and employee salary reduction contributions) that are due have been timely paid to each Company Plan that is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date that are not yet due have been timely paid to each Employee Pension Benefit Plan or accrued in accordance with the past custom and practice of the Company. All premiums or other payments for all periods ending on or before the Closing Date have been timely paid with respect to each Company Plan that is an Employee Welfare Benefit Plan.
(f) Each Company Plan that is intended to be qualified under Section 401(a) of the Code is the subject of a favorable determination letter, and to the Knowledge of the Company, there are no facts or circumstances that have affected or are likely to affect the qualified status of such Company Plan. Except as set forth on Section 4.15(f) of the Company Disclosure Schedule, none of the Company Plans is, and the Company does not have any Liability (including current or potential withdrawal Liability) with respect to, a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA or a single employer pension plan within the meaning of Section 4001(a)(15) of ERISA. Except as required by COBRA, none of the Company Plans provide for or promise retiree medical, disability, or life insurance benefits. No Company Plan is (i) a defined benefit plan or subject to Section 412 of the Code or Title IV of ERISA or (ii) a self-insured group health plan.
(g) Except as set forth on Section 4.15(g) of the Contributor Company Disclosure Schedule, each Company Benefit Plan there has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be no “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit planprohibited transaction” (as defined in Section 3(35ERISA § 406 or Code § 4975) and no “reportable event” (within the meaning of ERISA)ERISA § 4043) has occurred, (B) with respect to any Company Plan. No “multiemployer planfiduciary” (as defined in Section 3(37ERISA § 3(21)) has any Liability for breach of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company ERISA Affiliate of incurring a liability thereunder; (v) none Plan. To the Knowledge of the Company, no Action or Proceeding with respect to the administration or the investment of the assets of any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits)) is pending, audits, investigations, proceedingsthreatened, or suits byanticipated. To the Knowledge of the Company, there is no basis for any such Action or Proceeding.
(h) Except as specified on behalf of or against any Section 4.15(h) of the Company Benefit Plans; Disclosure Schedule, (viii) all paymentsthe Company is not, premiumsnor will be, contributionsobligated to pay separation, distributionsseverance, reimbursements termination or similar benefits as a result of any transaction contemplated by this Agreement, nor will any such transaction accelerate the time of payment or vesting, or increase the amount, of any benefit or other amounts required compensation due to any individual from the Company; and (ii) the transactions contemplated by this Agreement will not be the direct or indirect cause of any amount paid or payable by the Company or the Company Subsidiaries for all periods ending prior to or being classified as an excess parachute payment under Section 280G of the Closing Date with respect to each Code.
(i) Each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes subject to Section 409A of the Code (each, a “Section 409A”) is and has been operated in compliance with the provisions of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance Treasury Regulations promulgated thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.16(a) of the Contributor Company Disclosure Schedule Letter sets forth a true and complete list list, as of the date of this Agreement, of each material “employee benefit plan” as defined in Section 3(3) of ERISA and any other material plan, policy, program, or agreement (including any employment, bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement) providing compensation or other benefits to any current or former director, officer, individual consultant or employee, which are maintained, sponsored or contributed to by the Company Benefit or any of the Company’s Subsidiaries, or to which the Company or any of the Company’s Subsidiaries is a party or has or may have any liability, and in each case whether or not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is both required under applicable Law and maintained by any Governmental Authority (each, an “Employee Plan”). The Company has delivered to Parent, to the extent applicable, true, complete and correct copies of (v) each Employee Plan (or, if not written a written summary of its material terms), including all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (w) the most recent summary plan descriptions, including any summary of material modifications (x) the most recent annual report (Form 5500 series) filed with the IRS with respect to such Employee Plan, (y) the most recent actuarial report or other financial statement relating to such Employee Plan, and (z) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Employee Plan and any pending request for such a determination letter.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedulewould not have a Company Material Adverse Effect, each Company Benefit Employee Plan has been maintainedestablished, operated, funded and administered in compliance in all material respects with its terms and all applicable LawLaws, including ERISA and the Code; .
(iic) each Company Benefit No Employee Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received is a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” pension plan (as defined in Section 3(37) of ERISA), ) (Ca “Multiemployer Plan”) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, pension plan that is or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under was subject to Title IV of ERISA or Sections 412 or 430 of the Code (“Title IV Plan”) and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to, been required to contribute to, or has any actual or contingent liability under, a Multiemployer Plan or Title IV Plan, including at any time within the previous six (6) years. Neither the Company nor any of its ERISA Affiliates has incurred by a Company any withdrawal liability under Section 4201 of ERISA Affiliate that has not been satisfied in full, fully satisfied.
(d) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and no condition exists that presents has received a risk to current favorable determination letter from the Company, IRS. No member of the Company Subsidiaries Group has any obligation to provide any post-employment, post-service or post-ownership health or welfare benefits to any other Company ERISA Affiliate of incurring a liability thereunder; Person (v) none except as required by Section 4980B of the CompanyCode and for which the covered Person pays the full premium cost of coverage). No member of the Company Group has incurred (whether or not assessed) any material Tax or penalty under Sections 4980B, any 4980D, 4980H, 6721 or 6722 of the Code.
(e) Except as would not have a Company Subsidiary Material Adverse Effect, with respect to each Employee Plan, no Legal Proceedings, actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to threatened.
(f) Except as set forth on Section 409 or 502(i3.16(f) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure ScheduleLetter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (hereby will, either alone or in conjunction combination with any other event): another event (such as termination following the consummation of the transactions contemplated hereby), (i) result in entitle any current or former employee, officer or other service provider of the Company or any Subsidiary of the Company Subsidiaries being liable for to any payment severance pay or benefit any other compensation or benefits payable or to be provided by the Company or any Subsidiary of the Company, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits (including non-deductible remuneration (as described in Section 162(mCompany Options, Company RSUs and Company SARs) due to any such employee, officer or other individual service provider by the Company or a Subsidiary of the CodeCompany, (iii) severancelimit or restrict the right of Parent to merge, retentionamend or terminate any Employee Plan on or after the Effective Time, stay-put, change of control, unemployment compensation, or (iv) result in any “excess parachute payment” (within the meaning of under Section 280G of the Code), tax .
(g) Neither the Company nor any of its Subsidiaries has any obligation to provide any Person a Tax gross-up, forgiveness of indebtedness make whole or otherwise) becoming due similar payment with respect to any Person from the Company Taxes, including those imposed under Sections 409A or any 4999 of the Code.
(h) Except as would not have a Company Subsidiaries under Material Adverse Effect, with respect to each Employee Plan subject to the Laws of any Company Benefit jurisdiction outside the United States, (i) all employer contributions to each such Employee Plan required by applicable Law or otherwise; by the terms of such Employee Plan have been made, (ii) increase any amounts or benefits otherwise payable or due each such Employee Plan required to any Person under any Company Benefit Plan or otherwise; or be registered has been registered and has been maintained in good standing with applicable regulatory authorities and, to the Knowledge of the Company, and (iii) result each such Employee Plan required to be fully funded or fully insured, is fully funded or fully insured, including any back-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws. Each Employee Plan subject to the Laws of any acceleration of jurisdiction outside the time of payment United States which provides retirement benefits is a defined contribution plan and all contributions have been timely made with respect to any statutory plan, program or vesting of, or arrangement that is required under applicable Law and maintained by any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanGovernmental Authority.
Appears in 1 contract
Samples: Merger Agreement (Augmedix, Inc.)
Employee Plans. (a) Set forth in Section 3.12(a) 3.13 of the Contributor Disclosure Schedule sets forth Letter is a true and complete list of each all the Company's employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all the Company's bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance, insurance (including any self-insured or post-retirement arrangements), disability, vacation, profit-sharing and other similar employee benefit plans, arrangements, policies or agreements, and all the Company's unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company Benefit Plan(collectively, the "Employee Plans").
(b) The With respect to each Employee Plan, the Company has previously provided made available to Local Insight Buyer, a true and complete copies of: correct copy of (i) each written Company Benefit Plan; the most recent annual report (Form 5500) filed with the IRS, (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; such Employee Plan, and (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit actuarial report or calculation relating to any Employee Plan that is subject to Title IV of ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(ic) Except as With respect to the Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company, there exists no condition or set forth of circumstances in connection with which the Company could be subject to any liability that is reasonable likely to have a material adverse effect on the Contributor Disclosure ScheduleCompany, each Company Benefit under ERISA, the Code or any other applicable law.
(d) Each Employee Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan which is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter been so qualified during the period from the IRS, and there are no circumstances that would reasonably be expected its adoption to adversely affect the qualified status of any such Company Benefit Plandate, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. The Company has furnished to Buyer copies of the most recent IRS determination letters with respect to each such Company Benefit plan.
(e) Each Employee Plan has been timely amended for maintained in compliance with its terms and with the legislation commonly known as “GUST” requirements prescribed by any and “EGTRRA” all statutes, orders, rules and has been submitted regulations, including but not limited to ERISA and the IRS for a determination letter on the GUST legislation within the Code, which are applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” to such Employee Plan. No "prohibited transaction" (as that term is defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 406 of ERISA or Section 413(c) 4975 of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date occurred with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer any Employee Plan. No tax under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A 4980B of the Code has been operated incurred in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries haverespect to any Employee Plan that is a group health plan, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described defined in Section 3.12(d5000(b) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m1) of the Code) severance. With respect to the employees and former employees of the Company, retentionthere are no employee post-retirement medical or health plans in effect, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of except as required by Section 280G 4980B of the Code).
(f) With respect to the Employee Plans, tax gross-upthere are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, forgiveness of indebtedness or otherwise) becoming due to any Person from otherwise properly footnoted in accordance with generally accepted accounting principles, on the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanFinancial Statements.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Image Guided Technologies Inc)
Employee Plans. (a) Section 3.12(a4.11(a) of the Contributor Company Disclosure Schedule Letter sets forth a true an accurate and complete list of each all Company Employee Benefit PlanPlans.
(b) The With respect to each Company Employee Benefit Plan, the Company has previously provided made available to Local Insight true Parent an accurate and complete copies of: copy of (as applicable): (i) each written Company Benefit Planplan document, including all amendments thereto, and all related trusts agreements; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each current summary plan description, including any summaries of the last three yearsmaterial modifications, all summaries of benefits and coverage, and any other summaries or material employee communications; (iii) the most recent determination letter (or if applicable, advisory or opinion letter) from the IRS (Internal Revenue Service, if applicable) any, and any pending applications for each Company Benefit Plana determination or opinion letter; (iv) the current summary annual reports on Forms 5500 for the last three plan description of each Company Benefit Plan that is subject years to ERISAthe extent required under applicable Law; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such planany actuarial valuations; (vi) a summary of the material terms of each unwritten Company Benefit PlanContracts including insurance contracts and administrative services agreements, as applicable; and (vii) the annual report for each all notices or other non-routine written correspondence regarding such Company Employee Benefit Plan (if applicable) for each between a plan fiduciary, the Company or any ERISA Affiliate and the Internal Revenue Service, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental Authority in the last three years.
(ic) Except as set forth on the Contributor Disclosure Schedule, each Each Company Employee Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received been the subject of a favorable determination and up-to-date determination, advisory or opinion letter from the IRSInternal Revenue Service on which the Company is entitled to rely, and there are and, to the knowledge of the Company, no event has occurred, no condition, facts or circumstances exist that would reasonably be expected to adversely affect cause the qualified status loss of any such qualification or the imposition of material liability, penalty or Tax under ERISA, the Code or other applicable Law. All assets of the Company Employee Benefit PlanPlans, and each such if applicable, consist of cash or actively traded securities.
(d) Each Company Employee Benefit Plan has been timely amended for operated, established, maintained and administered in all material respects in accordance with its terms and with all provisions of ERISA, the legislation commonly known as “GUST” Code and “EGTRRA” and other applicable Laws.
(e) The Company has been submitted not engaged in any non-exempt prohibited transaction, within the meaning of Section 4975 of the Code or Section 406 of ERISA that would be reasonably expected to result in the imposition of material liability, penalty or Tax on the Company, and, to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none knowledge of the Company, no such prohibited transaction has occurred with respect to any Company SubsidiaryEmployee Benefit Plan.
(f) No Company Employee Benefit Plan is (i) subject to Title IV of ERISA, Section 302 of ERISA, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) 412 of ERISA)the Code, (Bii) any a “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(404001(a)(3) of ERISA, or (Eiii) a “multiple employer plan” within the meaning of Section 210 4063 or 4064 of ERISA or a plan subject to Section 413(c) of the Code; , (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied “multiple employer welfare arrangement” (as defined in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i3(40) of ERISA or a material Tax imposed pursuant to Section 4975 applicable state law) or 4976 of (v) any health or other welfare arrangement that is self-insured, and neither the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against Company nor any ERISA Affiliate of the Company has ever sponsored, maintained, contributed to, been required to contribute to, or had any obligations or incurred any liability under any plan described in the foregoing clauses (i) through (v). No Company Employee Benefit Plans; (viiPlan is or has ever been, or currently funds or has ever been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) all payments, premiums, contributions, distributions, reimbursements of the Code or other amounts funding arrangement for the provision of welfare benefits.
(g) The Company does not offer, or have any liability or obligation to provide life, health or medical benefits or insurance coverage to any individual, or to the dependent of any individual, for any period extending beyond the termination of the individual’s employment, except to the extent required to be paid by the Company Consolidated Omnibus Budget Reconciliation Act of 1985 or similar provisions of state Law for which the Company Subsidiaries individual pays for all periods ending prior the full cost of coverage or for a limited period of time following a termination of employment pursuant to the terms of an existing employment, severance or similar agreement, in each case, (i) in effect as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; date hereof and (viiiii) the Company, set forth on Section 4.11(a) of the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsDisclosure Letter.
(dh) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either Transactions, alone or in conjunction combination with any other event): event (such as a termination of employment), will (i) result in any payment becoming due, or increase the Company amount of any compensation due, to any current or any former employee or other service provider of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwiseCompany; (ii) result in any payment becoming due under any Company Employee Benefit Plan; (iii) increase any amounts or benefits otherwise payable or due to any Person under any Company Employee Benefit Plan or otherwisePlan; or (iiiiv) except as provided in Section 3.4, result in any the acceleration of the time of payment or vesting ofof any compensation or benefits; or (v) result in the payment of any amount that would, individually or in combination with any other such payment, reasonably be expected to constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code; (vi) result in the triggering or imposition of any restrictions or limitations on the rights of the Company to amend or terminate any Company Employee Benefit Plan, or (vii) entitle the recipient of any requirement payment or benefit to fund receive a “gross up” payment for any income or secureother Taxes, including under Section 409A or Section 4999 of the Code. The Company does not have any obligation to pay any “gross up” or other reimbursement payment for any income or other Taxes, including under Section 409A or Section 4999 of the Code.
(i) All Company Stock Options, Company RSUs, and all other equity or equity-based awards granted under any Stock Plan have been granted in all material respects in accordance with the terms of the applicable Stock Plan and have been administered in all material respects in accordance with the terms of the applicable award agreement. Each Company Stock Option has an exercise price that is no less than the fair market value of the underlying Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code, and is otherwise exempt from Section 409A of the Code. Each Company Stock Option (or option to purchase Company Common Stock that has previously been exercised) intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies. The Company has made available to Parent accurate and complete copies of (i) each Stock Plan; (ii) the forms of standard award agreement under the Stock Plans; (iii) copies of any award agreements that materially deviate from such forms and (iv) a list of all outstanding equity and equity-based awards granted under any Stock Plan, together with the recipient and the material terms of each such award (including but not limited to grant date, exercise price, vesting terms, form of award, expiration date, and number of shares underlying such award).
(j) At all times, the ESPP has qualified as an “employee stock purchase plan” under Section 423 of the Code, and has been administered in all material respects in accordance with its terms and all applicable Laws. All options to purchase shares under the ESPP (now outstanding or previously exercised or forfeited) have satisfied applicable Law, including the requirements of Section 423 of the Code.
(k) Each Company Employee Benefit Plan or other arrangement that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code has been written, executed and operated in compliance with Section 409A of the Code and the regulations promulgated thereunder.
(l) No Company Employee Benefit Plan is subject to any Laws other than those of the United States or any state, county, or municipality in the United States, nor is any Company Employee Benefit Plan maintained outside of the United States or for the benefit of employees, directors, consultants or other independent contractors located outside of the United States, and the Company does not contribute to or have any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government.
(m) Other than routine claims for benefits, no actions, investigations, suits, or claims with respect to any Company Employee Benefit Plan are pending or, to the knowledge of the Company, threatened, and, to the knowledge of the Company, there are no facts that reasonably would be expected to give rise to any such actions, suit or claims against any Company Employee Benefit Plan, or, to the knowledge of the Company, any amounts fiduciary with respect to a Company Employee Benefit Plan or benefits or result in any breach the assets of or default under any a Company Employee Benefit Plan.
(n) There has been no amendment to, or written interpretation of or announcement by the Company relating to, or change in employee participation or coverage under, any Company Employee Benefit Plan that would materially increase the expense of maintaining such Company Employee Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date.
(o) For each Company Employee Benefit Plan, all contributions, premiums and payments have been made or accrued in accordance with the terms of such plan and applicable Law.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a2.12(a) of the Contributor Disclosure Schedule sets forth contains a true and complete list list, with respect to each Company, of each (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and (ii) any other pension plans or employee benefit agreements, arrangements, programs or payroll practices (including severance pay, other termination benefits or compensation, vacation pay, salary, company awards, stock option, stock purchase, salary continuation for disability, sick leave, retirement, deferred compensation, bonus or other incentive compensation, stock purchase arrangements or policies, hospitalization, medical insurance and life insurance) whether funded or unfunded, written or oral, qualified or nonqualified, whether or not tax-qualified or subject to ERISA, for the benefit of any present or former employee, consultant, manager or director of such Company Benefit Planwith respect to which such Company would be reasonably expected to have any liability (together, the “Company Employee Plans”).
(b) The Company Seller has previously provided made available to Local Insight true Buyer an accurate, current, and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for copy of each of the last three years; Company Employee Plans and related material plan documents (iii) including, to the most recent determination letter from the IRS (if extent applicable) for each Company Benefit Plan; (iv) the current , trust documents, insurance policies or contracts, employee booklets, summary plan description descriptions and summary of material modifications), or where any Company Employee Plan has not been reduced to writing, a written summary of each Company Benefit Plan that is subject Employee Plan’s terms, and have, to ERISA; (v) a copy the extent applicable, made available copies of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; Form 5500 reports (viincluding all applicable schedules) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report filed for each Company Benefit Plan (if applicable) for each of the last three (3) plan years.
(i) Except as set forth on the Contributor Disclosure Schedule, each . Any Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Employee Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received is the subject of a favorable and current determination letter or opinion letter from the IRS. Seller has also made available to Buyer the most recent IRS determination, and there are no circumstances notification, advisory, or opinion letter, if any, issued with respect to each such Company Employee Plan, and, nothing has occurred since September 6, 2019 that would could reasonably be expected to adversely affect cause the loss of the tax-qualified status of any such Company Benefit Plan, and each such Company Benefit Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted subject to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c401(a) of the Code; .
(ivc) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any Person, except as required by Applicable Law. Since September 6, 2019, there has been no liability under Title IV non-exempt “prohibited transaction,” as such term is defined in Section 406 of ERISA and Section 4975 of the Code, with respect to any Company Employee Plan. Since September 6, 2019, each Company Employee Plan has been incurred administered, in all material respects, in accordance with its terms and in compliance with the requirements prescribed by a Company any and all applicable statutes, rules and regulations (including ERISA Affiliate that has not and the Code), and all reporting requirements have been satisfied in fullall material respects. Since September 6, and no condition exists that presents a risk 2019, all contributions required to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, be made by any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Employee Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 have been made on or 502(i) of ERISA before their due dates. No suit, administrative proceeding, action or a material Tax imposed pursuant to Section 4975 other litigation has been brought or 4976 of the Code; (vi) there are no is pending, or, to the Knowledge of the ContributorsSeller, threatened is threatened, against or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each any such Company Benefit Plan have been made Employee Plan, including any audit or properly accrued; (viii) inquiry by the CompanyIRS, the Company Subsidiaries and the United States Department of Labor, or any other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person Governmental Entity, other than requests for payments in the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan ordinary course or requests for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsqualified domestic relations orders.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, by this Agreement will (either alone themselves or in conjunction with any other event): agreements of the Companies in effect to Closing will (i) entitle any current or former employee, manager, director or other service provider of any Company to severance benefits or any other payment by any Company, except as expressly provided in this Agreement or in Section 2.12(d) of the Disclosure Schedule, (ii) increase any benefits otherwise payable by any Company or (iii) accelerate the time of payment or vesting of any benefit, or increase the amount of compensation due any such employee, manager, director or service provider by any Company, except as provided in this Agreement or in Section 2.12(d) of the Disclosure Schedule.
(e) Each Employee Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Buyer.
(f) No Company maintains, sponsors, participates in or contributes to, nor, since September 6, 2019, has it ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Section 302 of ERISA, Title IV of ERISA or Section 412 of the Code.
(g) Since September 6, 2019, no Company is a party to, or has made any contribution to or otherwise incurred any obligation to contribute to, any “multi-employer plan” as defined in Section 3(37) of ERISA.
(h) Neither the execution of this Agreement, nor the consummation of the transactions contemplated hereby will result in the Company receipt or retention by any Person who could be a “disqualified individual” (within the meaning of the Company Subsidiaries being liable for Code Section 280G) of any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, that is a “excess parachute payment” (within the meaning of Code Section 280G). No Company is obligated to make reimbursement or gross-up payments to any Person in respect of “excess parachute payments” as such term is described under Section 280G of the Code), tax gross-.
(i) Each Company Employee Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A of the Code) that is subject to Section 409A of the Code has been operated in compliance with Section 409A of the Code and applicable IRS guidance. No Company has any obligation to gross up, forgiveness of indebtedness indemnify, or otherwise) becoming due otherwise reimburse any individual for any excise taxes, interest, or penalties incurred pursuant to any Person from the Company or any Section 409A of the Company Subsidiaries under any Company Benefit Plan or otherwise; Code.
(iij) increase any amounts or Notwithstanding anything to the contrary contained herein, the representations and warranties in this Section 2.12 are the sole and exclusive representations and warranties of Seller concerning employee benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planmatters.
Appears in 1 contract
Employee Plans. (ai) Section 3.12(a) of the Contributor The Company Disclosure Schedule Letter sets forth a true and complete list of each Company Benefit Plan.
(b) Employee Plans. The Company has previously provided deli vered or made available to Local Insight true the Purchaser complete and complete up -to- date copies ofof the Employee Plans, or written descriptions of the material terms thereof if unwritten, including to the extent applicable: (i) each written Company Benefit Plan; the plan documents (as amended) and current employee booklets for the Employee Plans , (ii) trust agreements, funding agreements, insurance contracts and policies, investment management agreements, subscription and participation agreements, benefit administration contracts, financial administration contracts, record keeping and other service agreements for the actuarial report for each Company Benefit Plan (if applicable) for each of the last three yearsEmployee Plans; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Planannual report and accompanying schedule; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISAand any modifications t hereto; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (viiv ) the most recent annual report for each Company Benefit Plan (if applicable) financial, accountings a nd actuarial statements, and all reports, statements, valuations, returns and correspondence for each of the last three yearsyears which affect premiums, contributions, refunds, deficits or reserves under any Employee Plan ; (vi) statements of premiums, contribu tions, or benefits paid by the Company for each of the past two complete financial years an d year to date; and (vii) material communications between the Company and past or present participants in the Employee Plans, as well as between the Company and Xxxx rnmental Entities .
(iii) Except as set forth on All of the Contributor Disclosure ScheduleEmployee Plans are and have been established, each Company Benefit Plan has been maintainedregistered, funded , qualified and administered in material compliance in with all material respects Laws and their terms. To the knowledge of the Company, no fact or circumstance exists which could adversely affect the registered status (if any) of any such Employee Plan , and neither the Company nor any of its agents or delegates has breached any fiduciary obligation with its terms and applicable Law, including ERISA and respect to the Code; (ii) each Company Benefit administration or investment of any Employee Plan . Each Employee Plan that is intended to be “qualified” within qualify for tax -preferred or tax -exempt treatment has been registered in accordance wit h applicable Laws, and, to the meaning of Section 401(a) knowledge of the Code Company, no event has received a favorable determination letter from occurred with respect to any such Employee Plan that could result in the IRS, and there are no circumstances that would revocation of the registration of such Employee Plan or which could otherwise reasonably be expected to adversely affect the qualified tax status of any such Company Benefit Plan, and each such Company Benefit Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; .
(iii) none Except as disclosed in the Company Disclosure Letter, all of the Employee Plans are fully funded . All benefits accrued under any Employee Plan not required to be funded by the terms of such plan or applicable Law have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, IFRS .
(iv) No Employee Plan is subje ct to any actual or , to the knowledge of the Company, pending Action initiated by any Company SubsidiaryGovernmental Entity, or by any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims party (other than routine claims for benefits)) which, auditsif adversely determined, investigationswould be reasonably expected to have, proceedingsindividually or in the aggregate, a Company Material Adverse Effect , and, to the knowledge of the Company, there exists no state of facts which could reasonably be expected to give rise to any such action.
(v) Except as provided in this Agreement, the execution, delivery and performance of this Agreement and the consummation of the Arrangement will not (A) result in any material payment (including, without limitation, bonus, golden parachute, retirement, severance, or suits by, on behalf of other benefit or against enhanced benefit) becoming due or payable to any of the Company Benefit Plans; Employees (viipresent or former), (B) all paymentsincrease the compensation or benefits otherwise payable to any Company Employee (present or former), premiumsor (C) result in the acceleration of the time of payment or vesting of any material benefits or e ntitlements otherwise available pursuant to any Employee Plan (except for outstanding Company Options, contributionsand RSUs).
(vi) Each Plan can be amended, distributionsterminated or otherwise discontinued after the Closing in accordance with its terms, reimbursements or other amounts required without liability to be paid by the Purch aser, the Company or any of its affiliates other than ordinary administrative expenses typically incurred in a termination event. To the knowledge of the Company Subsidiaries for all periods ending prior to , no fact, condition or as circumstance has arisen or occurred since the date of the Closing Date documents pro vided in accordance with respect to each Company Benefit Plan have been made or properly accrued; paragraph (viiir) of Schedule C of this Agreement which would materially affect the Companyinformation contained therein and, in particular, and without limiting the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 generality of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Scheduleforegoing, neither the execution and delivery Company nor any of this Agreement nor the its Subsidiaries has made any commitment or obligation or any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to materially adopt, amend, modify or terminate any Employee Plan, in connection with th e consummation of the transactions contemplated by this Agreement will or otherwise.
(either alone vii) None of the Employee Plans, or any insurance contract relating thereto, require or permit a material retroactive increase in conjunction with premiums or payments, or require additional materia l premiums or payments on termination of the Employee Plan or any other event): (i) result in insurance contact relating thereto. Nothing has been done or omitted to be done by the Company or any of the Company its Subsidiaries being liable for which could make any payment policy or benefit (including non-deductible remuneration (as described insurance contract void or voidable. All contracts in Section 162(m) respect of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from Employee Plans are valid and the Company or its Subsidiaries can enforce such contracts or cause such contracts to be enforced.
(viii) Except as disclosed in the Company Disclosure Letter, none of the Employee 3 O D Q V V W H U L H G LS VH Q DV L R‡ UQ H XX XX D Q · or is required to be registered under federal or provincial minimum pension standards legislation in Canada; L L L V D ‡ V D O D U of section 248 of the Tax Act; L L L L V D ‡ U H W L purposes of section 248 of the Tax Act; or (iv) provide for retiree or post - employment benefits for retired or former employees, including to the beneficiaries or depend ents of retired or former Company Employees , other than for a statutory, common law, civil law or contractual notice period .
(ix) There exists no losses or Taxes in connection with any former employee benefit plan relating to current or former employees, directors, officers or independent cont ractors of the Company Subsidiaries under (or the respective spouse, beneficiaries or dependents of such individuals) that has terminated, and all procedures for termination of each such former employee benefit plan have been properly followed in accordance with the terms of such former employee benefit plans and applicable Law.
(x) The Company has not taken any Company Benefit action in connection with events and/or circumstances related to COVID -19 with respect to any Employee Plan or otherwise; (ii) increase any amounts the compensation or benefits otherwise payable of any employee that is not in the Ordinary Course consistent with past practice , or due except as approved by an insurer in respect of insured plans .
(xi) All data necessary to any Person under any Company Benefit administer each Employee Plan or otherwise; or (iii) result is in any acceleration the possession of the time Company or an agent and is in a form which is sufficient fo r the proper administration of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result the Employee Plan in any breach of or default under any Company Benefit Planaccordance with its terms and all applicable Laws and such data is complete and correct in all material respects.
Appears in 1 contract
Samples: Arrangement Agreement
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule 4.18 hereto sets forth a true and complete list of all Employee Plans and Benefit Arrangements maintained, administered or contributed to, or otherwise participated in, by Company. True and complete copies of each Company such Employee Plan or Benefit Plan.
(b) The Company has previously Arrangement, including amendments thereto, have been provided to Local Insight FNFI, together with true and complete copies of: of (i) each written Company Benefit Planannual reports for the most recent three (3) years (Form 5500 Series including, if applicable, Schedules A and B thereto); (ii) all plan documents and the actuarial report for most recent summary plan description of each Company Benefit Plan (if applicable) for each of the last three yearssuch Employee Plan, together with any modifications thereto; and (iii) the most recent favorable determination letter from the IRS (if applicable) from the Internal Revenue Service for each Company Benefit such Employee Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy . None of the description of each Company Benefit Plan not subject to ERISA that Employee Plans is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “"multiemployer plan” (" as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, ERISA or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “a "multiple employer plan” within the meaning of " as covered in Section 210 of ERISA or Section 413(c412(C) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a , and the Company ERISA Affiliate that has not been satisfied obligated to make a contribution to any such multiemployer or multiple employer plan. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to each such Employee Plan or Benefit Arrangement and all contributions for any period ending on or before the Closing Date which are not yet due have been paid to each such Employee Plan or Benefit Arrangement or accrued in fullaccordance with past custom and practice of Company. Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and each trust maintained pursuant thereto is exempt from income tax under Section 501(a) of the Code. Neither Company nor any Employee Plan, and no condition exists that presents a risk to the Companynor any trusts created thereunder, the Company Subsidiaries or nor any trustee, administrator nor any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciaryfiduciary thereof, has engaged in a transaction or taken or failed to take any action "prohibited transaction," as defined in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) 406 of ERISA or a material Tax imposed pursuant to and Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planfiduciary duty as defined in Part 4 of Subtitle B of Title I of ERISA.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity National Financial Inc /De/)
Employee Plans. (a) Section 3.12(a3.18(a) of the Contributor Company Disclosure Schedule sets forth contains a true correct and complete list of each material Company Benefit Plan subject to the laws of the United States. No later than thirty (30) days following the date of this Agreement, the Company shall provide or make available to Parent a complete list of each material Foreign Company Benefit Plan.
(b) The Company has previously provided or made available to Local Insight Parent with respect to each and every material Company Benefit Plan subject to the laws of the United States a true and complete copies of: copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the extent applicable, (i) each written the most recent determination letter received by the Company or any of its Subsidiaries from the IRS regarding the tax-qualified status of such Company Benefit Plan; (ii) the actuarial report most recent financial statements for each such Company Benefit Plan (if applicable) for each of the last three yearsPlan; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Planactuarial valuation report; (iv) the current summary plan description and any summaries of material modifications; and (v) Form 5500 Annual Returns/Reports, together with all schedules thereto, for the most recent plan year. No later than thirty (30) days following the date of this Agreement, the Company shall provide or make available to Parent all plan documents with respect to each material Foreign Company Benefit Plan or a written summary of such plan.
(c) With respect to each Company Benefit Plan that is subject to ERISA; a “single-employer plan” (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a3(41) of ERISA) and is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) the minimum funding standards (within the meaning of Sections 412 and 430 of the Code has received a favorable determination letter from the IRSor Section 302 of ERISA) are satisfied, whether or not waived, and there are no circumstances that would reasonably be expected to adversely affect application for a waiver of the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and minimum funding standard has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment periodIRS; (iiiii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any no “defined benefit planreportable event” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c4043(c) of ERISA) for which the Code30-day notice requirement has not been waived has occurred; (iviii) no liability other than for premiums to the Pension Benefit Guarantee Corporation (“PBGC”) under Title IV of ERISA has been or is reasonably expected to be incurred by a the Company or any of its ERISA Affiliate that Affiliates, and all premiums to the PBGC have been timely paid in full; (iv) the PBGC has not been satisfied in fullinstituted proceedings to terminate any such plan, and and, to the Knowledge of the Company, 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 Companyadminister, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereundersuch plan; (v) none of the Companyno such plan is currently, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would is reasonably be expected to be subject to either a material civil penalty assessed pursuant to be, in “at-risk” status (as defined in Section 409 or 502(i303(i)(4) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 430(i)(4) of the Code); (vi) there are no pending, or, to the Knowledge fair market value of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, assets and liabilities of such plan has been reported in accordance with GAAP by the Company on behalf of or against any the most recent financial statements of the Company Benefit PlansCompany; and (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by neither the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company nor its Subsidiaries have no current or potential obligation or liability by reason engaged in a “substantial cessation of being treated as a single employer under Section 414 of operations” within the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes meaning of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d4062(e) of the Contributor Disclosure ScheduleERISA, neither the execution 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) not result in the occurrence of any such event. None of the Company or any of its ERISA Affiliates has, at any time during the Company Subsidiaries being liable for any payment last six years, contributed to or benefit (including non-deductible remuneration (been obligated to contribute to a “multiemployer plan” as described defined in Section 162(m3(37) of the Code) severanceERISA (a “Multiemployer Plan”), retention, stay-put, change or a plan that has two or more contributing sponsors at least two of whom are not under common control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G 4063 of the Code), tax gross-up, forgiveness ERISA. None of indebtedness or otherwise) becoming due to any Person from the Company or any of its ERISA Affiliates has withdrawn at any time within the preceding six years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that would reasonably be expected to result in any such liability to the Company Subsidiaries or any of its Subsidiaries.
(d) With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, or such plan has been adopted under a prototype plan or volume submitter plan approved by the IRS, and nothing has occurred with respect to the operation of any such plan which 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.
(e) There are no pending or, to the Knowledge of the Company, threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan subject to the laws of the United States or otherwise; (ii) increase against any amounts or benefits otherwise payable or due to any Person under fiduciary of any Company Benefit Plan or otherwise; or subject to the laws of the United States with respect to the operation of such plan (iii) other than routine benefits claims). Except as would not reasonably be expected to result in any acceleration a Company Material Adverse Effect, there are no pending or, to the Knowledge of the time Company, threatened actions, claims or lawsuits against or relating to any Foreign Company Benefit Plan or against any fiduciary of payment any Foreign Company Benefit Plan with respect to the operation of such plan (other than routine benefits claims).
(f) Each Company Benefit Plan subject to the laws of the United States has been established and administered in all material respects in accordance with its terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable laws, and all contributions required to have been made under any of the Company Benefit Plans subject to the laws of the United States to any funds or vesting of, trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Company’s financial statements.
(g) None of the Company Benefit Plans subject to the laws of the United States provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any requirement other applicable law or at the expense of the participant or the participant’s beneficiary. There has been no material violation of the “continuation coverage requirement” of “group health plans” as set forth in Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA with respect to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanPlan to which such continuation coverage requirements apply.
Appears in 1 contract
Samples: Merger Agreement
Employee Plans. (a) Section 3.12(a) 3.10 of the Contributor Disclosure Schedule sets forth a true and complete list of each "employee benefit plan," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and each other material written, unwritten, formal or informal plan, agreement, program, policy or other arrangement involving direct or indirect compensation to employees or other service providers (other than workers' compensation, unemployment compensation and other government programs), including employment, severance, consulting, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, deferred compensation, profit-sharing, bonuses, stock options, stock appreciation rights, other forms of incentive compensation, post-retirement insurance benefits, or other benefits, entered into, maintained or contributed to by the Company Benefit Planor the Company Subsidiary or with respect to which the Company or the Company Subsidiary has or may in the future have any liability (contingent or otherwise). Each such plan, agreement, program, policy or arrangement required to be set forth on the Disclosure Schedule pursuant to the foregoing is referred to herein as a "BENEFIT PLAN."
(b) The Company has previously provided made available the following documents to Local Insight true Parent with respect to each Benefit Plan: (1) correct and complete copies of: (i) each written Company of all documents embodying such Benefit Plan; , including (iiwithout limitation) all amendments thereto, and all related trust documents, (2) a written description of any Benefit Plan that is not set forth in a written document, (3) the most recent summary plan description together with the summary or summaries of material modifications thereto, if any, (4) the three most recent annual actuarial report for each Company Benefit Plan valuations, if any, (5) all Internal Revenue Service ("IRS") or Department of Labor ("DOL") determination, opinion, notification and advisory letters, (6) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if applicableany, (7) for each of all material correspondence to or from any Governmental Authority received in the last three years; , (iii) 8) all discrimination tests for the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary three plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; years, and (vii9) the annual report for each Company Benefit Plan all material written agreements and contracts currently in effect, including (if applicablewithout limitation) for each of the last three yearsadministrative service agreements, group annuity contracts, and group insurance contracts.
(ic) Except as set forth on the Contributor Disclosure Schedule, each Company Each Benefit Plan has been maintained, funded maintained and administered in compliance in all material respects in compliance with its terms and applicable Lawwith the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including (without limitation) ERISA and the Code; (ii) each Company , which are applicable to such Benefit Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Benefit Plans have been timely made or accrued. Each Benefit Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is so qualified and either:
(1) has received obtained a currently effective favorable determination letter from the IRSnotification, and there are no circumstances that would reasonably be expected advisory and/or opinion letter, as applicable, as to adversely affect its qualified status (or the qualified status of any the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such Company Benefit Plana letter, and each no amendment to such Company Benefit Plan has been timely amended adopted since the date of such letter covering such Benefit Plan that would adversely affect such favorable determination; or (2) still has a remaining period of time in which to apply for or receive such letter and to make any amendments necessary to obtain a favorable determination.
(d) No plan currently or ever in the legislation commonly known as “GUST” and “EGTRRA” and has been submitted past six (6) years maintained, sponsored, contributed to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of or required to be contributed to by the Company, any Company Subsidiaryof its Subsidiaries, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any of their respective current or potential liability former ERISA Affiliates is or obligation under ever in the past six (or with respect to6) years was (A1) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “a "multiemployer plan” (" as defined in Section 3(37) of ERISA), (C2) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as a plan described in Section 3.12(d) 413 of the Contributor Disclosure ScheduleCode, (D3) any “multiple employer welfare arrangement” as defined in a plan subject to Title IV of ERISA, (4) a plan subject to the minimum funding standards of Section 3(40) 412 of the Code or Section 302 of ERISA, or (E5) “multiple employer plan” a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. The term "ERISA AFFILIATE" means any Person that, together with the Company or any of its Subsidiaries, would be deemed a "single employer" within the meaning of Section 210 of ERISA 414(b), (c), (m) or Section 413(c(o) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (ai) Section 3.12(aSchedule 4.1(w) lists all the employee benefit, health, welfare, supplemental unemployment benefit, bonus, profit sharing, deferred compensation, stock compensation, stock purchase, hospitalization insurance, medical, dental, legal, disability and similar plans or arrangements or practices relating to the Employees or former employees which are currently maintained or were maintained at any time in the past (the “Employee Plans”). Atmos has never had any retirement or pension funds, arrangements or similar plans. With respect to its Employee Plans, Atmos has not been required by any Legal Requirement to prepare or distribute to its Employees any: (A) annual report; (B) actuarial valuation; (C) annual audited financial statement and opinion; or (D) annual and periodic accounting of plan assets.
(ii) All of the Contributor Disclosure Schedule sets forth a true Employee Plans are and complete list of each Company have been established, registered, qualified, invested and administered in all respects in accordance with all laws, regulations, orders or other legislative, administrative or judicial promulgations applicable to the Employee Plans (“Applicable Employee Benefit Laws”). Atmos has no tax-exempt Employee Plan.
(biii) The Company All obligations regarding the Employee Plans have been satisfied, there are no outstanding defaults or violations by any party to any Employee Plan and no Taxes, penalties or fees are owing under any of the Employee Plans.
(iv) Atmos may unilaterally amend, modify, vary, revoke or terminate, in whole or in part, each Employee Plan and may merge any Employee Plan or the assets transferred from any Employee Plan with any other plan, arrangement or fund.
(v) Atmos has previously provided furnished to Local Insight true MoSys true, correct and complete copies of: (i) each written Company Benefit Plan; (ii) of all the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except Employee Plans as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date date hereof together with all related documentation including funding agreements, actuarial reports, funding and financial information returns and statements, all professional opinions (whether or not internally prepared) with respect to each Company Employee Plan, all material internal memoranda concerning the Employee Plans, copies of material correspondence with all regulatory authorities with respect to each Employee Plan and plan summaries, booklets and personnel manuals. No material changes have occurred to the Employee Plans or are expected to occur which would affect the actuarial reports or financial statements required to be provided to MoSys pursuant to this Section 4.1(w).
(vi) None of the Employee Plans enjoys any special tax status under Applicable Employee Benefit Laws, nor have any advance tax rulings been sought or received in respect of the Employee Plans.
(vii) All employee data necessary to administer each Employee Plan have has been made or properly accrued; provided by Atmos to MoSys and is true and correct.
(viii) the Company, the Company Subsidiaries No insurance policy or any other contract or agreement affecting any Employee Plan requires or permits a retroactive increase in premiums or payments due thereunder. The level of insurance reserves under each insured Employee Plan is reasonable and the other Company ERISA Affiliates have complied and are in compliance in sufficient to provide for all material respects with COBRA; incurred but unreported claims.
(ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated Except as a single employer under Section 414 disclosed in Schedule 4.1(w), none of the Code with any Person other than Employee Plans provides benefits to retired employees or to the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes beneficiaries or dependants of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law retired employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Samples: Share Purchase Agreement (Monolithic System Technology Inc)
Employee Plans. (a) Section 3.12(aSchedule 4.12
(a) Within forty-five (45) days after the Signing Date, the Seller will deliver to the Buyer Schedule 4.12(a), which will list each Business Employee Plan (other than de minimis Plans) in effect on the Signing Date and each Subsidiary of Seller with Business Employees covered by such plan, as well as the Contributor Disclosure Schedule sets forth a true nation or territory each such plan covers (and complete whether such plan provides for retiree medical or other retiree welfare benefits), and also separately will list of each Company Benefit Planother material Business Employee Plan in effect within the preceding two (2) years.
(b) The Company has previously provided With respect to Local Insight true each Business Employee Plan (other than de minimis Plans) in effect on the Signing Date, the Seller will make available to the Buyer within sixty (60) days after the Signing Date, to the extent applicable, complete and complete accurate copies of: (i) each written Company Benefit Planplan document, trust, insurance contract and amendment to each of them; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each summaries of the last three yearsmaterial terms provided, or required to be provided under applicable Legal Requirements, to participants and beneficiaries; (iii) solely with respect to the most recent Transferred Plans, licenses, certificates, stamps, letters (including favorable determination letter from the IRS (if applicableletters) or similar items issued by a governmental, quasi-governmental or administrative organization approving its form or required for each Company Benefit Planits lawful maintenance or operation; (iv) solely with respect to the current summary plan description of each Company Benefit Plan that is subject to ERISATransferred Plans, the most recently filed governmental report or reports; and (v) a copy solely with respect to the Transferred Plans for which all of the liability is being transferred to the Buyer, the two most recent financial, actuarial, valuation and similar reports. The Seller shall provide the Buyer with a written description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit any Business Employee Plan (if applicable) for each of the last three yearswhich is not in written form.
(ic) Except as set forth on the Contributor Disclosure Scheduledisclosed in Schedule 4.12(c), each Company Benefit Transferred Plan has been maintained, funded operated and administered in compliance in all material respects with its terms and the applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) Legal Requirements of the Code relevant jurisdiction (including the requirements for any funding and Tax-favored treatment intended for such plan or applicable to plans of its type). To the Seller's knowledge, no event, transaction or condition exists or has received a favorable determination letter from occurred that is reasonably likely to result in the IRSloss or material limitation of such Tax-favored treatment.
(d) All material contributions, premiums and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none benefit payments in respect of the Company, any Company Subsidiary, Transferred Employees under or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with the Business Employee Plans due prior to the date hereof have been timely made.
(e) There have been no acts or omissions by any party with respect to the Business Employee Plans which have given rise to or may give rise to material fines, penalties, taxes or related charges under applicable Legal Requirements for which after the CompanyClosing Date the Companies, the Company Subsidiaries Buyer or any Company Benefit Plan would of its other Subsidiaries could reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(iliable.
(f) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) Except as set forth in Schedule 4.12(f), there are no pendingactions, orsuits, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits)) or investigations pending or, auditsto Seller's Knowledge, investigationsthreatened, proceedings, involving any Business Employee Plan or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries their assets for all periods ending prior to or as of which after the Closing Date the Companies, Buyer or any of its other Subsidiaries could reasonably be expected to incur any material Liability and no event, transaction or condition exists or has occurred which could give rise to any such actions, suits, claims (other than routine claims for benefits) or investigations. The Companies have no material Liability with respect to each Company Benefit any Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than for contributions, payments or benefits due in the Company and ordinary course of business under the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentscurrent Business Employee Plans.
(dg) Except as described set forth in Section 3.12(d) of the Contributor Disclosure ScheduleSchedule 4.12(g)(i), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other event): (i) result in the Company or any of the Company Subsidiaries being liable for any material payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due on or after the Closing Date to any Person from the Company director, officer, employee, or any of the Company Subsidiaries former employee under any Company Benefit Plan or otherwise; Transferred Plan, (ii) materially increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or Transferred Plan, (iii) result in any acceleration of the time of payment or vesting ofof any material benefits under any Transferred Plan, or (iv) with respect to any requirement of the Business Employees subject to fund or securetaxation by the United States, any amounts or benefits or result in any breach excess parachute payments (as defined in Section 280G of the Code (without regard to subsection 280G(b)(4))). Except as set forth in Schedule 4.12(g)(ii), the Company and its Subsidiaries have made no agreement, undertaking or default under commitment with any Company Benefit employee, director, officer, service provider or agent (whether written or oral) to make such person fully or partially whole with respect to any adverse Tax consequences relating to any Transferred Plan.
(h) Except as set forth in Schedule 4.12(h) or in the Xxxxxx Xxxxx Report, no Transferred Plan provides any post retirement medical, dental, vision, life, disability or other welfare benefits or insurance coverage except as required by Legal Requirements.
(i) Except as set forth in Schedule 4.12(i), the Companies and all other sponsors of the Transferred Plans have retained the right to unilaterally amend or terminate each Transferred Plans to the fullest extent reasonably permitted by the Legal Requirements of the relevant jurisdiction. The Seller will deliver Schedule 4.12(i) to the Buyer within forty-five (45) days after the Signing Date.
Appears in 1 contract
Employee Plans. (a) The Company has made available to Parent all "employee benefit plans," as defined in Section 3.12(a3(3) of ERISA, and all material bonus or other incentive compensation, equity or equity-based compensation, deferred compensation and severance pay, plans or policies that the Contributor Disclosure Schedule sets forth a true and complete list Company or any of its subsidiaries has any obligation to or liability for (each Company an "Employee Benefit Plan" and collectively, the "Employee Benefit Plans").
(b) The Company has previously provided to Local Insight true True, correct and complete copies of: of the following documents, with respect to each of the Employee Benefit Plans (other than a Multiemployer Plan) have been made available or delivered to Parent by the Company (i) each written Company Benefit Planthe most recent plan document and related trust documents, and amendments thereto; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three yearsmost recent Forms 5500 and schedules thereto; (iii) the most recent Internal Revenue Service ("IRS") determination letter from the IRS (if applicable) for each Company Benefit Planletter; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISAmost recent financial statements and actuarial valuations, if applicable; and (v) a copy the most recent summary plan descriptions.
(c) As of the description of each Company date hereof, except for such non-compliance which would not have a Material Adverse Effect on the Company, (i) all payments required to be made by or under any Employee Benefit Plan not subject Plan, any related trusts, or any collective bargaining agreement or pursuant to ERISA that is currently provided to participants in such planLaw have been made by the due date thereof (including any valid extension); (viii) a summary the Employee Benefit Plans (other than any multiemployer plans), have been administered in compliance with their terms and the requirements of ERISA, the material terms of each unwritten Company Benefit PlanCode and other applicable Laws; and (viiiii) to the annual report Company's knowledge, there are no actions, suits, arbitrations or claims (other than routine claims for each Company benefit) pending or threatened with respect to any Employee Benefit Plan (if applicable) for each of the last three yearsPlan.
(id) Except as set forth on in Section 3.11(d) or the Contributor Company Disclosure Schedule, each Company Benefit Plan there has been maintained, funded and administered no "reportable event" as that term is defined in compliance in all material respects with its terms and applicable Law, including Section 4043 of ERISA and the Code; (ii) each Company regulations thereunder with respect to any Employee Benefit Plan subject to Title IV of ERISA which would require the giving of notice or any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA which would reasonably be expected to result in a Material Adverse Effect on the Company.
(e) Each of the Employee Benefit Plans which is intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code has received a favorable determination letter from been determined by the IRSIRS to so qualify, and there the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and the Company knows of no circumstances that fact which would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, pension plan or the exemption of such trust and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either result in 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, Material Adverse Effect on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(df) Except as described set forth in Section 3.12(d3.11(f) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will except as expressly contemplated by this Agreement will (either alone or in conjunction with any other event): Agreement, (i) result in any material payment becoming due, or materially increase the amount of compensation due, to any current or former employee of the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwiseits subsidiaries; (ii) materially increase any amounts or benefits otherwise payable or due to any Person under any Company Employee Benefit Plan or otherwisePlan; or (iii) result in any the acceleration of the time of payment or vesting ofof any such material benefits.
(g) Other than as set forth in Section 3.11(g) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has any rights plan, preferred stock plan, deferred compensation plan or similar Contract which applies to or provides for the grant or acceleration of any benefits as a result of the transactions contemplated hereby.
(h) Except as set forth in Section 3.11(h) of the Company Disclosure Schedule, there are no material unfunded benefit liabilities with respect to any defined benefit plan maintained by the Company or any requirement to fund of its subsidiaries, as determined under reasonable actuarial assumptions. No pension plan maintained by the Company or secureany of its subsidiaries has incurred an accumulated funding deficiency, any amounts whether or benefits or result in any breach of or default under any Company Benefit Plan.not waived
Appears in 1 contract
Employee Plans. (ai) Section 3.12(aSchedule 4.15(b)(i) lists (i) all employment agreements of employees of the Contributor Disclosure Schedule sets forth a true Company at the level of Vice President or more senior and (ii) all Employee Plans other than employment agreements separately by jurisdiction. The Company has furnished or made available to Parent true, correct and complete list copies of all material Employee Plans, as amended to the date hereof, together with a current (A) summary plan description, (B) Form 5500 and schedules thereto and the most recent actuarial report, if any, (C) favorable determination or opinion letter from the Internal Revenue Service and (D) related trust documents.
(ii) All material contributions or premiums (including employer contributions and employee salary reduction contributions) required to be paid under the terms of each Company Benefit Employee Plan have been made by the applicable due date (including any valid extension), and all such contributions for any period ending on or before the Closing Date that are not yet due will have been paid or accrued on the balance sheet on or prior to the Closing Date, in all cases in accordance with the terms of the applicable Employee Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) Neither the most recent determination letter from the IRS Company, its Subsidiaries, nor any of its Affiliates and any trade or business (if applicablewhether or not incorporated) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA or has ever been under common control, or that is currently provided to participants in such plan; or has ever been treated as a single employer, with any of them under Section 414(b), (vic), (m) a summary of the material terms of each unwritten Company Benefit Plan; and or (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(ao) of the Code has received a favorable determination letter from in the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan last six years contributed or has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted obligated to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes tocontribute, or has any current material liability, whether contingent or potential liability or obligation under (or otherwise, with respect to) (A) to any “defined benefit employee pension plan,” (as defined in Section 3(353(2) of ERISA), (B) that is subject to Title IV of ERISA or Section 412 of the Code, including any “multiemployer plan,” (as defined in Section 3(37) of ERISA), .
(Civ) any benefit plan, program, agreement, or arrangement that provides None of the Employee Plans provide for post-retirement employment life or post-termination medicalhealth insurance, life insurance benefits or other welfare-type benefits other than coverage for any participant or any beneficiary of a participant except (i) as described in Section 3.12(d) may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or and at the sole expense of the Contributor Disclosure Scheduleparticipant or the participant’s beneficiary, (Dii) for any “multiple employer welfare arrangement” continuation of benefits for a period of two years or less under any employment agreement that is listed on Schedule 4.15(b)(i) or (iii) as defined set forth on Schedule 4.15(b)(iv).
(v) Each Employee Plan has been operated and maintained in Section 3(40) all material respects in accordance with its terms and with all provisions of ERISA, or (E) “multiple employer plan” within the meaning of Code and other applicable Laws. Any Employee Plan intended to qualify under Section 210 of ERISA or Section 413(c) 401 of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the CompanyCode is so qualified, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Company, any Company Subsidiary or, Code and to the Knowledge of the Contributors, any other Person, including any fiduciary, Company nothing has engaged in a transaction or taken or failed occurred with respect to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit operation of such Employee Plan would that could reasonably be expected to be subject to either a material civil cause the loss of such qualification or exemption or the imposition of any liability, penalty assessed pursuant to Section 409 or 502(i) of Tax under ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; .
(vi) there are Other than routine benefit claims, no pendingmaterial Action has been asserted or instituted against any Employee Plan or the assets of any trust under any such Employee Plan, nor does the Company have Knowledge of facts that could reasonably be expected to form the basis for any such Action.
(vii) With respect to each material Employee Plan maintained outside of the United States (each, a “Foreign Plan”), except as set forth on Schedule 4.15(b)(vii):
(A) all employer and employee contributions to each Foreign Plan required by Law or by the terms of such Foreign Plan have been made, or, to the Knowledge of the Contributorsif applicable, threatened or anticipated claims accrued in accordance with normal accounting practices in all material respects;
(other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (viiB) all payments, premiums, contributions, distributions, reimbursements or other amounts each Foreign Plan required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date registered has been registered and has been maintained in good standing with respect to each Company Benefit Plan have been made or properly accrued; applicable regulatory authorities.
(viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Scheduleset forth on Schedule 4.15(b)(viii), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (hereby will, either alone or in conjunction together with any other event): , (iA) result in any material payment becoming due to any current or former Employee or member of the Company Board of Directors, (B) materially increase any benefits under any Employee Plan, (C) result in the Company or any acceleration of the Company Subsidiaries being liable for timing of payment, vesting or funding of any such benefits or (D) give rise to any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of that is nondeductible to the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of payor under Section 280G of the Code), Code or that is subject to tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any recipient under Section 4999 of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanCode.
Appears in 1 contract
Samples: Merger Agreement (Norwegian Cruise Line Holdings Ltd.)
Employee Plans. (a) Section 3.12(a) 3.9 of the Contributor Disclosure Schedule Letter sets forth a true, complete and correct list of each material Employee Plan. As applicable with respect to each material Employee Plan, the Sellers have made available to the Buyer a true and complete list copy of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies ofthe following documents: (i) each the most recent plan document, including all amendments thereto, and in the case of an unwritten plan, a written Company Benefit Plan; description thereof and (ii) the actuarial report for current summary description of each Company Benefit material Employee Plan (if applicableand any material modifications thereto. As applicable with respect to each Assumed Plan, the Sellers shall make available to the Buyer as specified in Section 5.4(d) for each a true and complete copy of the last three years; following documents: (i) all current trust documents and funding vehicles relating thereto, (ii) the most recently filed annual report (Form 5500 and all Sections thereto), (iii) the most recent determination or opinion letter from the IRS (IRS, if applicableany, with respect to any Employee Plan intended to be qualified under Section 401(a) for each Company Benefit Plan; of the Code and (iv) the current most recent summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsand actuarial report.
(ib) Except as set forth on the Contributor Disclosure ScheduleSince January 1, 2017, each Company Benefit Employee Plan has been maintained, funded operated and administered in compliance in all material respects in accordance with its terms and applicable LawLaw and administrative or governmental rules and regulations, including ERISA and the Code; . There are no pending audits or investigations by any Governmental Authority involving any Employee Plan, and no pending or, to the Knowledge of the Sellers, threatened claims (iiexcept for individual claims for benefits payable in the normal operation of the Employee Plans) each Company Benefit or Actions involving any Employee Plan.
(c) Each Employee Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to such qualification from the IRS.
(d) Neither Sellers nor any of their respective ERISA Affiliates has adopted, and there are no circumstances that would reasonably be expected maintained, sponsored, contributed to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan (or has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted required to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Companyadopt, any Company Subsidiarymaintain, sponsor or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect contribute to) any (Ai) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA), ; (Cii) any employee benefit plan, program, agreement, plan or arrangement that provides for post-retirement subject to Title IV or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) 302 of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, ERISA or (Eiii) “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate ), in each case, that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would could reasonably be expected to be subject result in any material Liability to either a material civil penalty assessed pursuant Buyer.
(e) No Employee Plan provides any post-employment health or welfare benefits to Section 409 or 502(i) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pending, or, any Business Employee except to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts extent required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with provided under COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither Neither the execution and nor delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either Agreement, whether alone or in conjunction together with any other event): , will (i) entitle any Business Employee to any material payment or benefit; (ii) increase the amount or value of any compensation, benefit or other obligation payable or required to be provided to any Business Employee; (iii) accelerate the time of payment or vesting, or increase the amount of compensation due any Business Employee or accelerate the time of any funding (whether to a trust or otherwise) of compensation or benefits under any Employee Plan; or (iv) result in the Company or payment of any of the Company Subsidiaries being liable amounts that would not be deductible for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning federal income tax purposes by reason of Section 280G of the Code), Code or would be subject to excise tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any under Section 4999 of the Company Subsidiaries Code. No Employee Plan provides for the reimbursement of any penalty or excise tax under any Company Benefit Plan Section 409A or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration 4999 of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanCode.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Employee Plans. (a) Section 3.12(a4.14(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Planall material Employee Plans. None of the Employee Plans has undergone within the last six years or is undergoing an audit or investigation (nor has notice been received of a potential audit or examination) by either the IRS, the United States Department of Labor or any other Authority.
(b) The Company has previously provided With respect to Local Insight true each Employee Plan, complete and complete correct copies ofof the following documents have been made available to Purchaser: (i) the most recent plan documents or written agreements thereof, and all amendments thereto and all related trust or other funding vehicles with respect to each such Employee Plan and, in the case of any Employee Plan that is not in written form, a description of all material aspects of such plan; (ii) the most recent summary plan description, and all related summaries of material modifications thereto, if applicable; (iii) the three most recent annual reports on Form 5500 (including schedules and attachments), financial statements and actuarial reports for the past three years, if applicable; (iv) the nondiscrimination testing results for the past three plan years; (v) the most recent IRS determination letter and any pending application with respect to each such Employee Plan which is intended to qualify under Section 401(a) of the Code; and (vi) for the last three years, all material correspondence with the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation, SEC or any other Authority regarding the operation or the administration of any Employee Plan, other than correspondence relating to matters in the ordinary course of business.
(c) With respect to each Employee Plan: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects in compliance with its terms and with all applicable LawLaws, including ERISA and the Code; (ii) each Company Benefit no Legal Actions (other than routine claims for benefits) are pending, or to the Company’s Knowledge threatened; (iii) all material premiums, contributions, or other payments required to have been made by Law or under the terms of any Employee Plan intended or any Contract or agreement relating thereto as of the Closing Date have been made or properly accrued in accordance with GAAP; (iv) all material reports, returns and similar documents required to be filed with any Authority or distributed to any plan participant have been duly filed or distributed; and (v) no “qualifiedprohibited transaction” or “reportable event” has occurred within the meaning of the applicable provisions of ERISA or the Code that could reasonably be expected to result in a material liability to the Company or Purchaser or any of its Affiliates.
(d) With respect to each Employee Plan intended to qualify under Section 401(a) of the Code Code, (i) the IRS has received issued a favorable determination letter from or opinion letter or advisory letter upon which the IRSCompany is entitled to rely under IRS pronouncements, and there are (ii) no circumstances such determination letter, opinion letter or advisory letter has been revoked nor, to the Company’s Knowledge, has revocation been threatened and, no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Planqualification or exemption, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none a multiple employer plan within the meaning of Section 413 of the Company, any Company Subsidiary, Code or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect toiv) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “a multiple employer welfare arrangement” arrangement as defined in Section 3(40) of ERISA, or .
(Ee) “multiple employer plan” No Employee Plan is nor was within the meaning past six years, nor do Sellers, the Company or any of their ERISA Affiliates have or reasonably expect to have any liability or obligation under (i) any employee benefit plan subject to Section 210 412 of ERISA the Code or Section 413(c) of the Code; (iv) no liability under 302 or Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries ERISA; or (ii) any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Multiemployer Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will not (either alone or in conjunction combination with any other another event): ) (i) result in the Company entitle any current or any former employee, consultant, officer or director of the Company Subsidiaries being liable for to severance pay, (ii) result in any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under Company’s Affiliates becoming due, or increase the amount of any Company Benefit Plan compensation due, to any current or otherwise; former employee, officer, director or consultant of the Company, (iiiii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or Employee Plan, (iiiiv) result in any the acceleration of the time of payment or vesting of, of any compensation or benefits from the Company or any requirement of the Company’s Affiliates to fund any current or secureformer employee, any amounts officer, director or benefits consultant of the Company or (v) result in any breach forgiveness of or default indebtedness, trigger any funding obligation under any Company Benefit Employee Plan or impose any restrictions or limitations on the Company’s right to administer, amend or terminate any Employee Plan.
(g) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or in combination with another event) result in any payment or deemed payment (whether in cash, property, the vesting of property or otherwise) 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). No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company or its Affiliates as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(h) No Employee Plan provides health, medical, or death benefits to current or former employees of the Company beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985 or as required to avoid the excise Tax under Section 4980B of the Code, or coverage mandated by any similar state group health plan continuation Law, the cost of which is fully paid by such current or former employees or their dependents.
(i) The Company and each Employee Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) (i) is currently in compliance, in all material respects, with the Patient Protection and Affordable Care Act, Pub.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Dolphin Entertainment, Inc.)
Employee Plans. (a) Section 3.12(a3.20(a) of the Contributor Company Disclosure Schedule sets forth forth: (i) all “employee benefit plans,” as defined in Section 3(3) of ERISA, and all material employee benefit programs, policies, or arrangements, including, without limitation, any such programs, policies, or arrangements providing severance pay, sick leave, vacation pay, salary continuation, disability, retirement benefits, deferred compensation, bonus pay, incentive pay, equity or equity-based compensation, stock purchase, hospitalization insurance, medical insurance, life insurance, cafeteria benefits, dependent care reimbursements, prepaid legal benefits, scholarships or tuition reimbursements, currently sponsored or maintained by the Company or to which the Company is obligated to contribute thereunder for current or former employees of the Company (the “Company Employee Benefit Plans”), and (ii) all “employee pension plans,” as defined in Section 3(2) of ERISA, currently maintained or sponsored by the Company or any trade or business (whether or not incorporated) which is under control or treated as a true and complete list single employer with the Company under Section 414(b), (c), (m), or (o) of each the Code (a “Company Benefit PlanERISA Affiliate”) or to which the Company or any Company ERISA Affiliate is obligated to contribute thereunder (the “Company Pension Plans”).
(b) The Company has previously provided to Local Insight true True, correct and complete copies ofof the following documents, with respect to each of the Company Employee Benefit Plans and Company Pension Plans, have been made available to Parent, to the extent applicable: (i) each written Company Benefit Planall plans and related trust documents, and amendments thereto; (ii) Forms 5500 filed for the actuarial report for each Company Benefit Plan (if applicable) for each of the last three most recent plan years; (iii) the most recent IRS determination letter from the IRS (if applicable) for each Company Benefit Planletter; (iv) the current most recent summary plan description of each Company Benefit Plan that is subject to ERISAdescriptions, annual reports and material modifications; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such planmost recent actuarial report, if any; and (vi) a summary written descriptions of all non-written agreements relating to the material terms of each unwritten Company Employee Benefit Plan; Plans. In addition, the most recent financial statements and (vii) actuarial valuations for the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsPension Plans have been made available to Parent.
(ic) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) None of the Code has received Company Employee Benefit Plans or Company Pension Plans is a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (, as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, ERISA or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 subject to Title IV of ERISA or Section 413(c) 412 of the Code; . The Company has not incurred any liability due to a complete or partial withdrawal from a multiemployer plan or due to the termination or reorganization of a multiemployer plan (iv) no except for any such liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full), and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary orevents have occurred and no circumstance exists, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan that would reasonably be expected to be subject result in any liability to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA the Company or a material Tax imposed pursuant Company ERISA Affiliate.
(d) Each Company Pension Plan that is intended to qualify under Section 4975 401 of the Code has received a determination letter from the IRS, or 4976 can rely on an opinion letter, that it so qualifies and that the trust is exempt from taxation under Section 501 of the Code; (vi) there are no pending, or, and to the Knowledge of the ContributorsCompany, threatened nothing has occurred since the date of determination that would reasonably be expected to cause the loss of such qualification or anticipated exemption or the imposition of any material liability, penalty or tax under ERISA or the Code.
(e) All contributions (including all employer contributions and employee salary reduction contributions) and all premiums required to have been paid under any of the Company Employee Benefit Plans or Company Pension Plans or by law (without regard to any waivers granted under Section 412 of the Code) to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension).
(f) There are no pending actions, claims or lawsuits which have been asserted or instituted against the Company Employee Benefit Plans or Company Pension 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 Company Employee Benefit Plans or Company Pension Plans with respect to the operation or administration of such plans or the investment of plan assets (other than routine claims for benefitsbenefit claims), auditsnor does the Company have Knowledge of facts which could form the basis for any such claim or lawsuit. No Company Employee Benefit Plan or Company Pension Plan has been the subject of an audit, investigations, proceedings, investigation or suits by, on behalf examination by any Governmental Entity to the Knowledge of or against any the Company.
(g) None of the Company Employee Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements Plans provide retiree life or other amounts retiree health benefits except as may be required to be paid by the Company under COBRA or the Company Subsidiaries for all periods ending prior to any similar state or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentslocal law.
(dh) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (hereby will, either alone or in conjunction together with any other event): the occurrence of subsequent events, (i) increase any benefits otherwise payable under any Company Employee Benefit Plan or Company Pension Plan, (ii) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting ofof any benefits including, or any requirement to fund or securebut not limited to, any amounts or benefits or result in any breach of or default under any Company Employee Benefit PlanPlan or Company Contract to any current or former employee, or (iii) entitle any current or former employee, officer, director or independent contractor of the Company to a payment or benefit that is not deductible by reason of Section 280G of the Code.
(i) With respect to each Company Option and Other Stock Award, (i) each such Company Option and Other Stock Award has been granted with an exercise price no lower than “fair market value” (within the meaning of Section 409A of the Code) as of the grant date, (ii) the “grant date” of such Company Option and Other Stock Award as reflected in the Company’s option and stock ledger is the same date of grant as determined in accordance with applicable tax laws and GAAP, and (iii) such option has been properly expensed by the Company in accordance with GAAP.
(j) Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) of the Company has been operated, since January 1, 2005, in good faith compliance with Section 409A of the Code, IRS Notice 2005-1, and other applicable notices required by law.
Appears in 1 contract
Samples: Merger Agreement (Oracle Healthcare Acquisition Corp.)
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true Buyer will make made available upon written request for examination by NMC true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letter relating to each written Company Benefit of Buyer's pension, profit-sharing, stock bonus or other deferred compensation arrangements, if any, for which a letter was obtained except for any multi-employer plans sponsored by Buyer, (each a "Plan; " and collectively the "Plans");
(ii) the actuarial report for most recent Annual Report (Form 5500 Series) and accompanying schedules of each Company Benefit Plan sponsored by Buyer with respect to which the same are required, as filed pursuant to applicable law; and
(if applicableiii) for all plan documents, as amended to date, summary plan descriptions and summaries of material modifications with respect to each Plan sponsored by Buyer, as well as the most recent financial statements of each of such plans. With respect to each of such Plans as to which an Annual Report (Form 5500 series) is required to be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material change has occurred with respect to the matters covered by the last Annual Report since the date thereof. Buyer does not know, nor have any reasonable grounds to know, of any "prohibited transaction," as such term is defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), which has been engaged in by Buyer or by any Plan sponsored by Buyer, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on prohibited transactions imposed by Section 4975 of the Code. There are no actions, suits or claims pending or, to the best of Buyer's knowledge, after due inquiry, threatened against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any said trust have incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA or Section 412(a) of the Code (whether or not waived), since the Closing Date of ERISA. The terms and operation of each of the last three years; (iii) Plans have complied to the most recent determination letter from extent required with the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning provisions of Section 401(a) of the Code has received a favorable determination letter from the IRSand with ERISA, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, all reports and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of notices required by ERISA or Section 413(c) the Code have been duly filed or given. Buyer shall make available for examination by JK or RK a list of the Code; (iv) no liability under all of Buyer's Plans subject to Title IV of ERISA and all trusts created thereunder which have been terminated, and all "reportable events," as that term is defined in Section 4043 of ERISA, if any. Except as may be specified in Buyer's Disclosure Schedule hereto, none of Buyer's Plans and no such trust has been incurred terminated, nor has any such "reportable event" occurred with respect to any such Plans since the effective date of ERISA. The present value, on a plan termination basis, of all benefits accrued under each Plan sponsored or contributed to by a Company ERISA Affiliate that has not been satisfied in full, Buyer and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) Title IV of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pendingdid not, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) most recent valuation date, exceed the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 fair market value of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation assets of such plan for purposes as of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentssuch date.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a4.14(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Planall material Employee Plans. None of the Employee Plans has undergone within the last six years or is undergoing an audit or investigation (nor has notice been received of a potential audit or examination) by either the IRS, the United States Department of Labor or any other Authority.
(b) The Company has previously provided With respect to Local Insight true each Employee Plan, complete and complete correct copies ofof the following documents have been made available to Purchaser: (i) the most recent plan documents or written agreements thereof, and all amendments thereto and all related trust or other funding vehicles with respect to each such Employee Plan and, in the case of any Employee Plan that is not in written form, a description of all material aspects of such plan; (ii) the most recent summary plan description, and all related summaries of material modifications thereto, if applicable; (iii) the three most recent annual reports on Form 5500 (including schedules and attachments), financial statements and actuarial reports for the past three years, if applicable; (iv) the nondiscrimination testing results for the past three plan years; (v) the most recent IRS determination letter and any pending application with respect to each such Employee Plan which is intended to qualify under Section 401(a) of the Code; and (vi) for the last three years, all material correspondence with the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation, SEC or any other Authority regarding the operation or the administration of any Employee Plan, other than correspondence relating to matters in the ordinary course of business.
(c) With respect to each Employee Plan: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects in compliance with its terms and with all applicable LawLaws, including ERISA and the Code; (ii) each Company Benefit no Legal Actions (other than routine claims for benefits) are pending, or to Sellers’ Knowledge threatened; (iii) all material premiums, contributions, or other payments required to have been made by Law or under the terms of any Employee Plan intended or any Contract or agreement relating thereto as of the Closing Date have been made or properly accrued in accordance with GAAP; (iv) all material reports, returns and similar documents required to be filed with any Authority or distributed to any plan participant have been duly filed or distributed; and (v) no “qualifiedprohibited transaction” or “reportable event” has occurred within the meaning of the applicable provisions of ERISA or the Code that could reasonably be expected to result in a material liability to the Company or Purchaser or any of its Affiliates.
(d) With respect to each Employee Plan intended to qualify under Section 401(a) of the Code Code, (i) the IRS has received issued a favorable determination letter from or opinion letter or advisory letter upon which the IRSCompany is entitled to rely under IRS pronouncements, and there are (ii) no circumstances such determination letter, opinion letter or advisory letter has been revoked nor has revocation been threatened and, to Sellers’ Knowledge, no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit qualification or exemption.
(e) No Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation is nor was within the applicable remedial amendment period; (iii) none of past six years, nor do Sellers, the Company, any Company Subsidiary, or any other Company of their ERISA Affiliate maintains, sponsors, contributes to, Affiliates have or has reasonably expect to have any current or potential liability or obligation under (or with respect to) (Ai) any “defined employee benefit plan” (as defined in plan subject to Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) 412 of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA Code or Section 413(c) of the Code; (iv) no liability under 302 or Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries ERISA; or (ii) any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Multiemployer Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will not (either alone or in conjunction combination with any other another event): ) (i) result in the Company entitle any current or any former employee, consultant, officer or director of the Company Subsidiaries being liable for to severance pay, (ii) result in any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of their respective Affiliates becoming due, or increase the Company Subsidiaries under amount of any Company Benefit Plan compensation due, to any current or otherwise; former employee, officer, director or consultant of the Company, (iiiii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or Employee Plan, (iiiiv) result in any the acceleration of the time of payment or vesting of, of any compensation or benefits from the Company or any requirement of their respective Affiliates to fund any current or secureformer employee, any amounts officer, director or benefits or result in any breach consultant of or default under any the Company Benefit Plan.or
Appears in 1 contract
Samples: Share Purchase Agreement (Dolphin Entertainment, Inc.)
Employee Plans. (a) Section 3.12(a) The Rock of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true Ages Group will make made available upon request for examination by Robexx Xxxx Xxxlds, III true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letter relating to each written Company Benefit of the Rock of Ages Group's pension, profit-sharing, stock bonus or other deferred compensation arrangements, if any, for which a letter was obtained except for any multi-employer plans sponsored by any number of the Rock of Ages Group, (each a "Plan; " and collectively the "Plans");
(ii) the actuarial report for most recent Annual Report (Form 5500 Series) and accompanying schedules of each Company Benefit Plan sponsored by the Rock of Ages Group with respect to which the same are required, as filed pursuant to applicable law; and
(if applicableiii) for all plan documents, as amended to date, summary plan descriptions and summaries of material modifications with respect to each Plan sponsored by a member of the Rock of Ages Group, as well as the most recent financial statements of each of such plans. With respect to each of such Plans as to which an Annual Report (Form 5500 series) is required to be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material change has occurred with respect to the matters covered by the last Annual Report since the date thereof. Buyer does not know, nor have any reasonable grounds to know, of any "prohibited transaction," as such term is defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), which has been engaged in by any member of the Rock of Ages Group or by any Plan sponsored by any member of the Rock of Ages Group, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on prohibited transactions imposed by Section 4975 of the Code. There are no actions, suits or claims pending or, to the best of Buyer's knowledge, after due inquiry, threatened against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any said trust have incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA or Section 412(a) of the Code (whether or not waived), since the Closing Date of ERISA. The terms and operation of each of the last three years; (iii) Plans have complied to the most recent determination letter from extent required with the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning provisions of Section 401(a) of the Code has received a favorable determination letter from the IRSand with ERISA, and there are no circumstances that would reasonably be expected to adversely affect all reports and notices required by ERISA or the qualified status Code have been duly filed or given. Buyer shall make available for examination by Robexx Xxxx Xxxlds, III a list of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none all of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) Rock of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Ages Group's Plans subject to Title IV of ERISA has and all trusts created thereunder which have been incurred by a Company ERISA Affiliate that has not been satisfied in fullterminated, and no condition exists all "reportable events," as that presents a risk to the Companyterm is defined in Section 4043 of ERISA, the Company Subsidiaries or any other Company ERISA Affiliate if any. Except as may be specified in Rock of incurring a liability thereunder; (v) Ages Group Disclosure Schedule hereto, none of the CompanyRock of Ages Group's Plans and no such trust has been terminated, nor has any Company Subsidiary orsuch "reportable event" occurred with respect to any such Plans since the effective date of ERISA. The present value, on a plan termination basis, of all benefits accrued under each Plan sponsored or contributed to the Knowledge by a member of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be Rock of Ages Group and subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) Title IV of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pendingdid not, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) most recent valuation date, exceed the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 fair market value of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation assets of such plan for purposes as of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentssuch date.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(aSchedule 4.13(a) of the Contributor Company Disclosure Schedule sets forth lists all "employee benefit plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other employee benefit plans or other benefit arrangements, including but not limited to all employment and consulting agreements and all bonus and other incentive compensation, deferred compensation, disability, severance, retention, salary continuation, vacation, stock award, stock option, stock purchase, collective bargaining or workers' compensation agreements, plans, policies and arrangements which the Company or any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a true "single employer" within the meaning of Section 4001(b) of ERISA, maintains, is a party to, has contributed to or has any obligation to or liability for current or former employees and directors of the Company (each an "Employee Benefit Plan" and collectively, the "Employee Benefit Plans"). Schedule 4.13(a) separately identifies each of such plans and arrangements Employee Benefit Plan subject to Title IV of ERISA.
(b) True, correct and complete list copies of the following documents with respect to each Company of the Employee Benefit Plans (as applicable) have been delivered or made available to Buyer: (i) the most recent plan, document or agreement, related trust documents and all amendments thereto, (ii) the most recent summary plan description and all related summaries of material modifications, (iii) the annual report on Form 5500 and attached schedules filed with the Internal Revenue Service in the last three years, (iv) the most recent actuarial report, (v) the most recent Internal Revenue Service determination letter, and (vi) a description of any nonwritten Employee Benefit Plan.
(bc) The Company has previously provided to Local Insight true and complete copies of: Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company, (i) each written Company all payments required to be made by or under any Employee Benefit Plan, any related trusts, or any collective bargaining agreement have been timely made; (ii) the actuarial report for each Company and its ERISA Affiliates have performed all material obligations required to be performed by them under any Employee Benefit Plan (if applicable) for each of the last three yearsPlan; (iii) the most recent determination letter from Employee Benefit Plans comply in all respects and have been maintained in compliance with their terms and the IRS (if applicable) for each Company Benefit Planrequirements of ERISA, the Code and other applicable laws; and (iv) there are no actions, suits, arbitrations or claims (other than routine claims for benefits) pending or, to the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy knowledge of the description of each Company Benefit Plan not subject Company, threatened with respect to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company any Employee Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(id) Except The Company and its ERISA Affiliates have not incurred any unsatisfied withdrawal liability with respect to any "multiemployer plan" as set forth on the Contributor Disclosure Schedule, each Company defined in Section 4001(a)(3) of ERISA.
(e) Each Employee Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan related trust which are intended to be “"qualified” " within the meaning of Section Sections 401(a) and 501(a) of the Internal Revenue Code has received a favorable determination letter of 1986, as from time to time amended (the IRS"Code"), respectively, have been determined by the Internal Revenue Service to be so "qualified" under such Sections, as amended by the Tax Reform Act of 1986, and there are the Company knows of no circumstances that fact which would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Employee Benefit Plan has been timely amended for the legislation commonly known and its related trust.
(f) Except as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter set forth on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(dSchedule 4.13(f) of the Contributor Company Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability contemplated by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedulethis Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other event): (i) result in any payment becoming due, or increase the amount of compensation due, to any current or former employee or director of the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwiseits subsidiaries; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Employment Benefit Plan or otherwisePlan; or (iii) result in any the acceleration of the time of payment or vesting ofof any such benefits.
(g) No Employee Benefit Plan has an "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code, or nor has any requirement to fund or secure, any amounts or benefits or result in any breach waiver of the minimum funding standards of Section 302 of ERISA and Section 412 of the Code been requested of or default granted by the Internal Revenue Service with respect to any Employee Benefit Plan, nor has any lien in favor of any such plan arisen under Section 412(n) of the Code or Section 302(f) of ERISA.
(h) The "benefits liabilities," as defined in Section 4001(a)(16) of ERISA, of each of the Employee Benefit Plans subject to Title IV of ERISA using the actuarial assumptions that were used in the most recent actuarial valuation (a true and complete copy of which has been provided to Buyer) in the event it terminated each such plan, do not exceed the fair market value of the assets of each such plan.
(i) No stock or other security issued by the Company forms or has formed a material part of the assets of any Company Employee Benefit Plan.
(j) No Employee Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for current or former employees or directors of the Company or any of its ERISA Affiliates for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable Laws, (ii) death benefits under any "pension plan" as defined in Section 3(2) of ERISA, or (iii) benefits, the full cost of which is borne by such current or former employee or director (or his or her beneficiary).
Appears in 1 contract
Samples: Merger Agreement (Clientlogic Corp)
Employee Plans. (a) Section 3.12(a4.14(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Planall material Employee Plans. None of the Employee Plans has undergone within the last six years or is undergoing an audit or investigation (nor has notice been received of a potential audit or examination) by either the IRS, the United States Department of Labor or any other Authority.
(b) The Company has previously provided With respect to Local Insight true each Employee Plan, complete and complete correct copies ofof the following documents have been made available to Purchaser, to the extent applicable: (i) the most recent plan documents or written agreements thereof, and all amendments thereto and all related trust or other funding vehicles with respect to each such Employee Plan and, in the case of any Employee Plan that is not in written form, a description of all material aspects of such plan; (ii) the most recent summary plan description, and all related summaries of material modifications thereto, if applicable; (iii) the three most recent annual reports on Form 5500 (including schedules and attachments), financial statements and actuarial reports for the past three years, if applicable; (iv) the nondiscrimination testing results for the past three plan years; (v) the most recent IRS determination letter and any pending application with respect to each such Employee Plan which is intended to qualify under Section 401(a) of the Code; and (vi) for the last three years, all material correspondence with the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation, SEC or any other Authority regarding the operation or the administration of any Employee Plan, other than correspondence relating to matters in the ordinary course of business.
(c) With respect to each Employee Plan: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects in compliance with its terms and with all applicable LawLaws, including ERISA and the Code; (ii) each Company Benefit no Legal Actions (other than routine claims for benefits) are pending, or to the Seller’s knowledge threatened; (iii) all material premiums, contributions, or other payments required to have been made by Law or under the terms of any Employee Plan intended or any Contract or agreement relating thereto as of the Closing Date have been made or properly accrued in accordance with GAAP; (iv) all material reports, returns and similar documents required to be filed with any Authority or distributed to any plan participant have been duly filed or distributed; and (v) no “qualifiedprohibited transaction” or “reportable event” has occurred within the meaning of the applicable provisions of ERISA or the Code that could reasonably be expected to result in a material liability to the Company or Purchaser or any of its Affiliates.
(d) With respect to each Employee Plan intended to qualify under Section 401(a) of the Code Code, (i) the IRS has received issued a favorable determination letter from or opinion letter or advisory letter upon which the IRSCompany is entitled to rely under IRS pronouncements, and there are (ii) no circumstances such determination letter, opinion letter or advisory letter has been revoked nor has revocation been threatened and, no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit qualification or exemption.
(e) No Employee Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation is nor was within the applicable remedial amendment period; (iii) none of past six years, nor do Seller, the Company, any Company Subsidiary, or any other Company of their ERISA Affiliate maintains, sponsors, contributes to, Affiliates have or has reasonably expect to have any current or potential liability or obligation under under, (or with respect to) (Ai) any “defined employee benefit plan” (as defined in plan subject to Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) 412 of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA Code or Section 413(c) of the Code; (iv) no liability under 302 or Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries ERISA; or (ii) any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Multiemployer Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will not (either alone or in conjunction combination with any other another event): ) (i) result in the Company entitle any current or any former employee, consultant, officer or director of the Company Subsidiaries being liable for to severance pay, (ii) result in any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under Company’s Affiliates becoming due, or increase the amount of any Company Benefit Plan compensation due, to any current or otherwise; former employee, officer, director or consultant of the Company, (iiiii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or Employee Plan, (iiiiv) result in any the acceleration of the time of payment or vesting of, of any compensation or benefits from the Company or any requirement of the Company’s Affiliates to fund any current or secureformer employee, any amounts officer, director or benefits consultant of the Company or (v) result in any breach forgiveness of or default indebtedness, trigger any funding obligation under any Company Benefit Employee Plan or impose any restrictions or limitations on the Company’s right to administer, amend or terminate any Employee Plan.
(g) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or in combination with another event) result in any payment or deemed payment (whether in cash, property, the vesting of property or otherwise) 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). No Person is entitled to receive any additional payment (including any tax gross-up or other payment) from the Company or its Affiliates as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(h) No Employee Plan provides health, medical, or death benefits to current or former employees of the Company beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985 or as required to avoid the excise Tax under Section 4980B of the Code, or coverage mandated by any similar state group health plan continuation Law, the cost of which is fully paid by such current or former employees or their dependents.
(i) The Company and each Employee Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) (i) is currently in compliance, in all material respects, with the Patient Protection and Affordable Care Act, Pub.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Dolphin Entertainment, Inc.)
Employee Plans. (a) Section 3.12(a3.18(a) of the Contributor Seller Disclosure Schedule Letter sets forth a true and complete list of each Company Benefit material Seller Employee Plan and the name of its sponsor or, where applicable, the name of the entity that is party to the Seller Employee Plan.
(b) The Company With respect to each material Seller Employee Plan, Seller has previously provided or made available to Local Insight true Purchaser a copy (or a true, complete and complete copies ofcurrent summary description) thereof (including amendments) and, to the extent applicable: (i) each written Company Benefit Planthe most recent IRS determination, opinion or advisory letter; (ii) the actuarial report for each Company Benefit Plan most recent summary plan description (if applicable) for each and any subsequent summaries of the last three yearsmaterial modifications); and (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; Form 5500 and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsattached schedules.
(ic) Except as set forth on has not had and would not reasonably be expected to have, individually or in the Contributor Disclosure Scheduleaggregate, a Material Adverse Effect, (i) each Company Benefit Seller Employee Plan has been maintained, funded maintained and administered operated in substantial compliance in all material respects with its terms and with any applicable Law, including provisions of ERISA and and/or the Code; and (ii) each Company Benefit Seller Employee Plan which is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a current favorable determination letter (or the prototype or volume submitter form plan document on which such Seller Employee Plan is based has received a current opinion letter or advisory letter) from the IRSIRS as to its qualification, and there are no circumstances nothing has occurred, whether by action or failure to act, that would reasonably be expected to adversely affect cause the qualified status loss of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsqualification.
(d) Except as described has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and except as disclosed in Section 3.12(d3.18(d) of the Contributor Seller Disclosure ScheduleLetter, neither none of the execution and delivery Share Sellers, any Acquired Company, any Asset Seller or any of this Agreement nor their respective ERISA Affiliates has any direct or indirect Liability with respect to any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA, including, without limitation, any “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code) or any “single-employer plan” (within the meaning of Section 4001(a)(15) of ERISA).
(e) Except as disclosed in Section 3.18(e) of the Seller Disclosure Letter, the consummation of the transactions contemplated by this Agreement will (either alone alone, or in conjunction combination with any other event): (i) result in , will not give rise to any material liability under any Seller Employee Plan, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any employee, officer, director or other service provider of the Share Sellers, any Acquired Company or any Asset Seller. No amount that could be received (whether in cash or property or the vesting of property), as a result of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) consummation of the Code) severancetransactions contemplated by this Agreement, retentionby any employee or other service provider of the Share Sellers, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning any Acquired Company or any Asset Seller under any Seller Employee Plan or otherwise would not be deductible by reason of Section 280G of the Code), Code or would be subject to an excise tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any under Section 4999 of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanCode.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure 4.21.1 Schedule sets forth 4.21 contains a true and complete list of each Company Benefit Employee Plan. Such schedule identifies the Employee Plan (i) sponsored by Seller and (ii) those which Seller provides or offers to its employees, or former employees (or their dependents or other beneficiaries), but which is sponsored by one of Seller's ERISA Affiliates. Except as set forth on Schedule 4.21, (i) the costs of all such Employee Plans which are paid currently by Seller are reflected as expenses in the Financial Statements; and (ii) the cost of such Employee Plans which are, in whole or in part, not paid currently by Seller are adequately reserved for in the balance sheet contained in the Financial Statements.
(b) The Company 4.21.2 Seller has previously provided made available to Local Insight true Buyer accurate and complete copies of: , to the extent applicable, (i) each written Company Benefit Plan; the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to any Employee Plan (if required), (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; trust agreement and group annuity contract relating to any Employee Plan, (iii) the most recent determination letter from the IRS (certified financial statements, if applicable) any, for each Company Benefit Plan; any Employee Plan and (iv) the current summary plan description most recent actuarial report, if any, prepared in connection with any Employee Plan and its funded status.
4.21.3 All contributions to the Employee Plans required to have been made in accordance therewith and, if applicable, ERISA Section 302 or Code Section 412, have been timely made by the applicable date. None of each Company Benefit Plan that is the Acquired Assets are subject to ERISA; (v) a copy any lien under ERISA Section 302 of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsCode Section 412.
(i) 4.21.4 Except as set forth on the Contributor Disclosure ScheduleSchedule 4.21, each Company Benefit Plan of the Pension Plans (and any related trust agreement or annuity contract or any other funding instrument)
(i) has been maintained, funded and administered in material compliance with the provisions of ERISA, the Code and all other applicable requirements of law (including Code Section 410(b) relating to coverage), where required in all material respects with its terms and applicable Law, including ERISA and the Codeorder to be tax-qualified under Code Section 401(a); (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(aall legally required governmental approvals for such plan have been obtained; and (iii) of the Code if applicable, has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted Internal Revenue Service to the IRS effect that the such plan is qualified under Code Section 401(a) which covers all amendments thereto for a determination letter on which the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” period (within the meaning of Code Section 280G 401(b) of the Code)Code and applicable regulations) has expired, tax gross-upand no such determination letter has been revoked nor, forgiveness to the knowledge of indebtedness Seller, has such revocation been threatened, nor has such plan been amended since the date of its most recent determination letter or otherwise) becoming due application therefore in any respect which would adversely affect its qualification.
4.21.5 Seller does not, and has not within the last six years, contributed to or been required to contribute to any Person from the Company "multiemployer pension plan" (as defined in ERISA Section 3(37)).
4.21.6 Except as set forth on Schedule 4.21, no Employee Plan provides medical, health, welfare or any death benefits (whether or not insured) with respect to current or former employees of the Company Subsidiaries Seller beyond their retirement or other termination of service, except as required under any Company Benefit Plan Code Section 4980B, Part 6 of Subtitle B of Title I of ERISA or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planother applicable law.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a2.10(a) of the Contributor Company Disclosure Schedule Schedules sets forth a true all material Company Employee Benefit Plans and complete list of each material Company Benefit PlanEmployee Agreements (collectively, the “Company Plans”), and identifies the country in which such Company Plan is maintained.
(b) The Except as set forth in Section 2.10(b) of the Company Disclosure Schedules, with respect to each Company Plan, the Company has previously provided made available to Local Insight true Parent a true, correct and complete copies copy of: (i) each written Company Benefit PlanPlan and all amendments thereto, if any (but not Company Employee Agreements); (ii) the actuarial report current summary plan description and any material modifications thereto, if any, or a written summary with respect to any plan for each Company Benefit Plan (if applicable) for each of the last three yearswhich no summary plan description exists; (iii) the most recent determination letter (or if applicable, advisory or opinion letter) from the IRS (Internal Revenue Service, if applicable) for each Company Benefit Planany; (iv) the current summary Form 5500 Annual Return/Report and accompanying schedules and attachments for the most recently completed plan description year, if any; (v) the most recently prepared actuarial reports and financial statements, if any; and (vi) all material correspondence within the preceding three (3) years to or from the Internal Revenue Service, Department of each Labor, Pension Benefit Guaranty Corporation, or other governmental agency relating to any audit, investigation or voluntary correction of such Company Plan.
(c) Each Company Employee Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received is the subject of a favorable determination letter (or, if applicable, is entitled to rely on an advisory or opinion letter) from the IRSInternal Revenue Service that has not been revoked, and there are to the Knowledge of the Company, no circumstances event has occurred and no condition exists that would reasonably be expected to materially adversely affect the qualified status of any such Company Employee Benefit PlanPlan or result in the imposition of any material liability, and each such penalty or Tax under ERISA or the Code.
(d) (i) Each Company Benefit Plan has been timely amended for operated and administered in all material respects in accordance with its provisions and in compliance with all applicable provisions of ERISA and the legislation commonly known as “GUST” Code; and “EGTRRA” (ii) all payments and contributions required to be made under the terms of any Company Plan have been made or the amount of such payment or contribution obligation has been submitted reflected in the financial statements included in the currently applicable Available Company SEC Documents which are publicly available prior to the IRS for a determination letter on date of this Agreement.
(e) In the GUST legislation within last six (6) years, neither the applicable remedial amendment period; (iii) none of the Company, Company nor any Company SubsidiaryAffiliate has maintained, established, participated in or any other Company ERISA Affiliate maintains, sponsors, contributes contributed to, or is or has been obligated to contribute to, and neither the Company nor any Company Affiliates otherwise has any current or potential liability or obligation under (or including any contingent liability) with respect to, (i) (A) any “defined benefit plan” (as defined in a plan that is subject to Sections 412 of the Code or Section 3(35) 302 or Title IV of ERISA), or (Bii) any a “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any . No Company Employee Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA, ).
(f) Except as otherwise provided in this Agreement or (E) “multiple employer plan” within the meaning of as set forth in Section 210 of ERISA or Section 413(c2.10(f) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure ScheduleSchedules, neither the execution and delivery of this Agreement Agreement, Company Stockholder Approval nor the consummation of the transactions contemplated by this Agreement will (either alone or in conjunction together with any other event): ) (i) entitle any current or former Company Employee to any payment or benefit, including any bonus, retention, severance or retirement payment or benefit; or (ii) 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 obligation under, any Company Plan.
(g) Neither the execution of this Agreement, Company Stockholder Approval nor the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) will, or would reasonably be expected to, result in the Company or payment of any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute paymentpayments” (within the meaning of Section 280G of the Code). No Company Plan, tax and neither the Company nor any Company Subsidiary, provides for a “gross-up” or similar payment in respect of any Taxes that may become payable under Sections 409A or 4999 of the Code.
(h) Each Company Plan that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code complies in all material respects with, forgiveness and the Company and all Company Subsidiaries have materially complied in practice and operation with, all applicable requirements of indebtedness Section 409A of the Code.
(i) None of the Company, any Company Subsidiary or otherwiseany Company Plan provides or has an obligation to provide any post-retirement medical benefits (whether insured or self-insured) becoming due to any Person from current or former Company Employee (other than coverage mandated by applicable Law, including benefits required to be provided to avoid excise Tax under Section 4980B of the Code). The Company and each Company Affiliate have complied in all material respects with Section 4980B of the Code or Part 6 of Subtitle B under Title I of ERISA or similar applicable Law.
(j) There is no action, suit, investigation, audit, proceeding or claim pending or, to the Knowledge of the Company, threatened against any Company Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation.
(k) Neither the Company nor any Company Subsidiary has been a party to, a sponsoring employer of, or otherwise is under any liability or obligation with respect to any defined benefit pension scheme, final salary scheme or any death, disability or retirement benefit calculated by reference to age, salary or length of service or any of them, for employees working outside of the US. To the Knowledge of the Company, no employee of the Company or any Company Subsidiary has any claim or right in respect of any benefit payable on early retirement or redundancy under an occupational pension scheme which has transferred to the Company or any Company Subsidiary by operation of the UK Transfer of Undertakings (Protection of Employment) Regulations 1981 or 2006 (as amended) or any equivalent Laws in any jurisdiction which has implemented the Acquired Rights Directive 2001 or provides for the automatic transfer of employees’ employment. To the Knowledge of the Company, neither the Company Subsidiaries under nor any Company Benefit Plan Subsidiary has discriminated against, or otherwise; in relation to, any employees on grounds of age, sex, disability, marital status, hours of work, fixed-term or temporary agency worker status, sexual orientation, or religion or belief in providing pension, lump-sum, death, ill-health, disability or accident benefits (iito the extent such grounds are legally protected categories locally) increase any amounts such that the Company or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement Affiliate could reasonably be subject to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planmaterial liability relating thereto.
Appears in 1 contract
Samples: Merger Agreement (Xura, Inc.)
Employee Plans. All employee benefit, welfare, bonus, deferred compensation, pension, profit sharing, stock option, employee stock ownership, consulting, severance, or fringe benefit plans, formal or informal, written or oral and all trust agreements related thereto, relating to any present or former directors, officers or employees of Crestar or the Crestar Subsidiaries (a"Crestar Employee Plans") Section 3.12(a) of are listed in the Contributor 16 18 Crestar Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Letter. Except as set forth on in the Contributor Crestar Disclosure ScheduleLetter, each Company Benefit Plan has all of the Crestar Employee Plans have been maintained, funded operated, and administered in all material respects in compliance with their terms and currently comply, and have at all relevant times complied, in all material respects with its terms and the applicable Lawrequirements of ERISA, including ERISA and the Code; , and any other applicable laws. Except as set forth in the Crestar Disclosure Letter, with respect to each Crestar Employee Plan which is a pension plan (iias defined in Section 3(2) of ERISA): (a) each Company Benefit Plan pension plan as amended (and any trust relating thereto) intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code either has received been determined by the IRS to be so qualified or is the subject of a favorable pending application for such determination letter that was timely filed, (b) there is no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, and no waiver of the minimum funding standards of such sections has been requested from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of (c) neither Crestar nor any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company SubsidiaryCrestar Subsidiaries has provided, or is required to provide, security to any other Company ERISA Affiliate maintainspension plan pursuant to Section 401(a)(29) of the Code, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect tod) (A) any “the fair market value of the assets of each defined benefit plan” plan (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) exceeds the value of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” "benefit liabilities" within the meaning of Section 210 4001(a)(16) of ERISA under such defined benefit plan as of the end of the most recent plan year thereof ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such defined benefit plan as of the date hereof, (e) no reportable event described in Section 4043 of ERISA has occurred for which the 30 day reporting requirement has not been waived has occurred, (f) no defined benefit plan has been terminated, nor has the PBGC instituted proceedings to terminate a defined benefit plan or to appoint a trustee or administrator of a defined benefit plan, and no circumstances exist that constitute grounds under Section 4042(a)(2) of ERISA entitling the PBGC to institute any such proceedings and (g) no pension 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; (iv) no . Neither Crestar nor any Crestar Subsidiary has incurred any liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, PBGC with respect to any "single-employer plan" within the Company Subsidiaries or any other Company ERISA Affiliate meaning of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i4001(a)(15) of ERISA currently or a material Tax imposed pursuant to formerly maintained by any entity considered one employer with it under Section 4975 4001 of ERISA or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code Code, except for premiums all of which have been paid when due. Neither Crestar nor any of its subsidiaries has incurred any withdrawal liability with respect to a multiemployer plan under Subtitle E of Title IV of ERISA. Neither Crestar nor any Person of its subsidiaries has an obligation to institute any Employee Plan or any such other than arrangement, agreement or plan. Except as set forth in the Company Crestar Disclosure Letter, there are no outstanding grants of restricted stock with respect to Crestar Common Stock and no outstanding stock appreciation rights with respect to Crestar Common Stock. With respect to any insurance policy that heretofore has or currently does provide funding for benefits under any Crestar Employee Plan, (A) there is no liability on the Company Subsidiaries; (x) each Company Benefit Plan that constitutes part of Crestar or any of its subsidiaries in the nature of a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; retroactive or retrospective rate adjustment, loss sharing arrangement, or other actual or contingent liability, nor would there be any such liability if such insurance policy was terminated, and (xiB) no insurance Crestar issuing such policy is in receivership, conservatorship, liquidation or similar proceeding and, to the Company and the Company Subsidiaries haveknowledge of Crestar, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) no such proceeding with respect to any such insurer is imminent. Except as described set forth in Section 3.12(d) of the Contributor Crestar Disclosure ScheduleLetter, neither the execution and delivery of this Agreement Agreement, nor the consummation of the transactions contemplated by this Agreement thereby will (either alone or in conjunction with A) constitute a stated triggering event under any other event): (i) Crestar Employee Plan that will result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) whether of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness severance pay or otherwise) becoming due to any Person from the Company Crestar or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due its subsidiaries to any Person under present or former officer, employee, director, shareholder, consultant or dependent of any Company Benefit Plan or otherwise; of the foregoing or (iiiB) result in any acceleration of accelerate the time of payment or vesting ofvesting, or increase the amount of compensation due to any requirement to fund present or secureformer officer, employee, director, shareholder, consultant, or dependent of any amounts or of the foregoing. The material terms of the Executive Agreements (as defined below) are reflected in the Crestar SEC Reports, as amended in the manner reflected in the Crestar Disclosure Letter. Neither Crestar nor any Crestar Subsidiary has any obligations for retiree health and life benefits or result in any breach of or default under any Company Benefit Crestar Employee Plan, except as set forth in the Crestar Disclosure Letter. Except as set forth in the Crestar Disclosure Letter, there are no restrictions on the rights of Crestar or the Crestar Subsidiaries to amend or terminate any such Crestar Employee Plan without incurring any liability thereunder.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a23(a) of the Contributor Corporation Disclosure Schedule Letter sets forth out a true true, correct and complete list of each Company Benefit Plan.
(b) all material Employee Plans. The Company Corporation has previously provided made available to Local Insight true the Parent true, correct and complete copies of: of the documents governing all such Employee Plans, as amended, and to the extent applicable with respect to each such Employee Plan:
(i) each written Company Benefit Plan; the two (2) most recent annual reports on Form 5500 and all schedules thereto;
(ii) the actuarial report most recent accounting and certified financial statement for each Company Benefit Plan (if applicable) for each of the last three years; which such statement is made;
(iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; summary plan description and summary of material modifications, as well as all similar employee communications;
(iv) the each plan text, current summary plan description of each Company Benefit Plan that is subject to ERISA; trust agreement, insurance contract or policy, group annuity contract and any other funding arrangement documents (including all amendments, restatements or replacements since their establishment);
(v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; most recent actuarial reports, financial statements or valuation reports;
(vi) a summary with respect to any Employee Plan that meets or purports to meet the requirements of Section 401(a) of the material terms of each unwritten Company Benefit Plan; and Code, a current Internal Revenue Service opinion or favourable determination letter;
(vii) the most recent annual report information returns filed with Governmental Entities for each Company Benefit Plan which such filing is required by applicable Law.
(if applicableviii) all material or non-routine correspondence to or from any Governmental Entity since December 31, 2021; and
(ix) all nondiscrimination tests for each the three (3) most recent plan years.
(b) Other than entitlements provided under the Employee Plans listed in Section 23(a) of the last three yearsCorporation Disclosure Letter, including continuation of benefits under such Employee Plans or as required by applicable Law on termination of service, there are no arrangements or agreements for the benefit of current or former Corporation Employees or Contractors of the type described in the definition of “Employee Plans”.
(c) No Employee Plan is or is intended to be a “registered pension plan”, a “retirement compensation arrangement”, a “deferred profit sharing plan”, a “tax-free savings account”, a “salary deferral arrangement” or a “pooled registered pension plan” as such terms are defined under the Tax Act. No Employee Plan contains a “defined benefit provision” as such term is defined under the Tax Act.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Each Employee Plan is and has been established, registered, funded (where required), administered and maintained in accordance with applicable Law, including ERISA, the Code and the Tax Act, as applicable, in accordance with its terms, in each case, in all material respects. Each Employee Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been administered, maintained, funded and administered operated in both documentary and operational compliance with Section 409A of the Code and/or the Tax Act and applicable guidance issued thereunder in all material respects. The Corporation and each of its Subsidiaries have complied in all material respects with the Consolidated Omnibus Budget Reconciliation Act of 1985, the Health Insurance Portability and Accountability Act of 1996 and the Family Medical Leave Act of 1993. To the knowledge of the Corporation, no fact or circumstance exists which would reasonably be expected to adversely affect the registered status of any such Employee Plan which is required to be registered.
(e) All contributions, premiums or Taxes required to be made or paid by the Corporation or any of its Subsidiaries, as the case may be, under the terms of each Employee Plan or by applicable Law have been made, in accordance with the terms of the applicable Employee Plan and as required by all applicable Law. There are no material unpaid contributions due prior to the date of this Agreement with respect to any Employee Plan that are required to have been made in accordance with such Employee Plan, including any related insurance contract or any Law and all material contributions due have been timely made, or to the extent not yet due, have been properly accrued on the applicable balance sheet in accordance with the applicable Employee Plan and Law.
(f) There are no material Actions or claims pending or, to the knowledge of the Corporation, threatened with respect to the Employee Plans (other than routine claims for benefits) and to the knowledge of the Corporation, no event has occurred or facts or circumstances exists that could result in such a material Action.
(g) No insurance policy or any other agreement with respect to any Employee Plan requires or permits a retroactive increase in contributions, premiums or other payments due under such insurance policy or agreement.
(h) No Employee Plan is or, in the past six (6) years has been, the subject to any investigation, examination, audit or other proceeding, or Action initiated by any Governmental Entity, is the subject of an application or filing under, or is a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program, and, to the knowledge of the Corporation, there exists no state of facts which after notice or lapse of time or both would reasonably be expected to give rise to any such Action or to affect the registration of any Employee Plan required to be registered.
(i) The Corporation and its Subsidiaries do not have any obligation or any liability to provide retiree or post-termination benefits or benefits to retired or terminated employees or to the beneficiaries or dependents of retired or terminated employees, except (i) as specifically required by Part 6 of Title I of ERISA or similar state law for which the covered Person pays the full premium cost of coverage or (ii) coverage through the end of the calendar month in which a termination of employment occurs.
(j) Except as disclosed in Section 23(j) of the Corporation Disclosure Letter, the execution and delivery of, and performance by the Corporation of this Agreement and the consummation of the transactions contemplated by it will not (either alone or in connection with any other event) (i) accelerate the time of payment or vesting of any compensation or benefit to any current or former Corporation Employee or Contractor; (ii) result in the payment of or an obligation to fund (through a trust or otherwise) any compensation or benefit to any current or former Corporation Employee or Contractor; (iii) increase the amount payable of any compensation or benefit to any current or former Corporation Employee or Contractor; (iv) result in the acceleration of any other material obligation pursuant to any Employee Plan; (v) result in the payment or provision of any amount (whether of compensation, termination, or severance pay or otherwise) that could individually or in combination with any other payment constitute an “excess parachute payment” within the meaning of Section 280G of the Code or otherwise be nondeductible under Section 280G of the Code; (iivi) each Company Benefit limit or restrict the ability of the Corporation, the Parent or any of their respective affiliates to merge, amend or terminate any of the Employee Plans or any related contract in accordance with its terms; or (vii) result in the forgiveness of any indebtedness of any current or former Corporation Employee or Contractor.
(k) No Person other than the Corporation and its Subsidiaries is or has been a participating employer under any Employee Plan.
(l) To the knowledge of the Corporation, there have been no improper withdrawals or improper applications or transfers of funds or assets to or from any Employee Plan.
(m) Each Employee Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable favourable determination letter or can rely on an opinion letter for a prototype plan from the IRSInternal Revenue Service that such plan is so qualified and exempt from taxation in accordance with Sections 401(a) and 501(a) of the Code, and there are and, to the knowledge of the Corporation, no circumstances condition exists that would reasonably be expected to adversely affect such qualification or result in material liability to the qualified status Corporation.
(n) None of any such Company Benefit Planthe Employee Plans are, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the CompanyCorporation, any Company Subsidiary, of its Subsidiaries or any other Company ERISA Affiliate maintainshas ever sponsored, sponsorsmaintained, contributes to, contributed to or had an obligation to contribute to or has had any current liability, contingent or potential liability or obligation under (or otherwise, with respect to, (i) a plan that is subject to Sections 412 or 430 of the Code or Title IV of ERISA, (Aii) any a “defined benefit multiple employer plan” (as defined in Section 3(35) within the meaning of Sections 4063 or 4064 of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G 3(40) of ERISA), (iii) a “welfare benefit fund” (as such term is defined in Section 419 of the Code), tax (iv) a “multiemployer plan” (within the meaning of Sections (3)(37) or 4001(a)(3) of ERISA) (v) a voluntary employees’ beneficiary association in accordance with Section 501(c)(9) of the Code, or (vi) a health or other welfare arrangement that is self-insured. There does not now exist, nor do any circumstances exist that would reasonably be expected to result in, following the Effective Time, any liability under Title IV of ERISA to the Corporation or any Subsidiary.
(o) Neither the Corporation nor any of its Subsidiaries has engaged in a non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) that has resulted or would reasonably be expected to result in material liability to the Corporation or any of its Subsidiaries. No event has occurred with respect to any Employee Plan, and there has been no failure to act on the part of either the Corporation, any of its Subsidiaries or, to the knowledge of the Corporation, a trustee or administrator of any Employee Plan, that could subject the Corporation, such Subsidiary or such trustee or administrator of the Employee Plan to the imposition of any material Tax, penalty, penalty Tax or other liability, whether by way of indemnity or otherwise.
(p) With respect to any Employee Plan, there is no material Action, audit or investigation pending or threatened in writing, with or by a current or former Corporation Employee or Contractor, the Internal Revenue Service, the U.S. Department of Labor, the Canada Revenue Agency, the Financial Services Regulatory Authority of Ontario, or any other Governmental Entity, other than routine claims for benefits.
(q) No Person is entitled to any gross-up, forgiveness of indebtedness make-whole, or otherwise) becoming due other additional payment from the Corporation or any Subsidiary with respect to any Person from Tax or interest or penalty related thereto, including under Sections 4999 or 409A of the Company or Code.
(r) Neither the Corporation, any of its Subsidiaries nor any ERISA Affiliate has used the Company Subsidiaries under any Company Benefit Plan services or otherwise; workers provided by third Person contract labor suppliers, temporary employees, “leased employees” (iias that term is defined in Section 414(n) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment Code).
(s) No promises or vesting ofcommitments have been made in writing by the Corporation to amend any Employee Plan, or any requirement to fund or secure, any amounts or provide increased benefits or result to establish any new benefit plan, except as required by applicable Laws or as set out in any breach Section 23(s) of or default under any Company Benefit Planthe Corporation Disclosure Letter.
Appears in 1 contract
Samples: Arrangement Agreement (Fusion Pharmaceuticals Inc.)
Employee Plans. (a) Section 3.12(a3.14(a) of the Contributor Company Disclosure Schedule Schedules sets forth a true and complete list of each Company Employee Benefit Plan. None of the Group Companies, any ERISA Affiliate of the Group Companies or Merger Sub maintain or contribute to or has any material Liability with respect to any Benefit Plan, whether or not subject to ERISA, which is not set forth on Section 3.14(a) of the Company Disclosure Schedules.
(b) The With respect to each Employee Benefit Plan on Section 3.14(a) of the Company Disclosure Schedules, the Company has previously provided delivered or made available to Local Insight true SPAC and its Representatives correct and complete copies of: , if applicable (i) each all plan documents and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto), and written Company descriptions of any Employee Benefit PlanPlans which are not in writing; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each most recent annual and periodic accounting of the last three yearsplan assets; (iii) the most recent determination letter from actuarial valuation; and (iv) all material communications with any Governmental Entity concerning any matter that is still pending or for which any Group Company has any outstanding Liability or obligation.
(c) Except as would not, individually or in the IRS aggregate, have a Company Material Adverse Effect, (if applicablei) for each Employee Benefit Plan set forth on Section 3.14(a) of the Company Benefit PlanDisclosure Schedules has been administered and enforced in accordance with its terms and the requirements of all applicable Laws, and has been maintained, where required, in good standing with applicable regulatory authorities and Governmental Entities; (ii) no breach of fiduciary duty has occurred; (iii) no Proceeding is pending or threatened; (iv) the current summary plan description of each Company all contributions, premiums and other payments (including any special contribution, interest or penalty) required to be made with respect to an Employee Benefit Plan that is subject to ERISAhave been timely made; (v) a copy of the description of each Company all benefits accrued under any unfunded Employee Benefit Plan not subject to ERISA that is currently provided to participants have been paid, accrued, or otherwise adequately reserved in such planaccordance with GAAP and are reflected on the Audited Financial Statements; (vi) a summary of the material terms of each unwritten Company no Employee Benefit PlanPlan provides for retroactive increases in contributions, premiums or other payments in relation thereto; and (vii) none of the annual report for Group Companies has incurred any Liability in connection with the termination of, or withdrawal from, any Employee Benefit Plan.
(d) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, to the extent applicable, the present value of the accrued benefit Liabilities (whether or not vested) under each Company Employee Benefit Plan, determined as of the end of the Company’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Employee Benefit Plan allocable to such benefit Liabilities.
(if applicablee) for each The consummation of the last three yearsTransactions will not, either alone or in combination with another event: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation under any Employee Benefit Plan; or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any director, officer, employee or independent contractor of any of the Group Companies or their ERISA Affiliates under any Employee Benefit Plan.
(f) Except to the extent required by applicable Law, none of the Group Companies or their ERISA Affiliates provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(g) No Employee Benefit Plan provides for the gross-up of any Taxes that may be imposed by any applicable Law.
(h) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (a) each Foreign Benefit Plan that is required to be registered or intended to be Tax exempt or receive favorable tax treatment has been registered (and, where applicable, accepted for registration) and is Tax exempt and has been maintained in good standing, to the extent applicable, with each Governmental Entity; (b) except as set forth under Section 3.14(h) of the Company Disclosure Schedules, no Foreign Benefit Plan has any material unfunded or underfunded Liabilities, nor are such unfunded Liabilities reasonably expected to arise in connection with the Transactions; and (c) all material contributions required to have been made by or on behalf of the Group Companies with respect to plans or arrangements maintained or sponsored a Governmental Entity (including severance, termination indemnities or other similar benefits maintained for employees outside of the U.S.) have been timely made or fully accrued.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a3.14(i) of the Code has received a favorable determination letter from the IRSCompany Disclosure Schedules, and there are no circumstances facts that would reasonably be expected to adversely affect give rise to, any material changes to the qualified status of Employee Benefit Plans resulting from disruptions caused by the COVID-19 pandemic or COVID-19 Measures, nor are any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentschanges currently contemplated.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) 4.18 of the Contributor Parent Disclosure Schedule sets forth a true true, correct and complete list of:
(i) all “employee benefit plans,” as defined in Section 3(3) of each Company the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), with respect to which the Parent or any of its Subsidiaries has any obligation or liability, contingent or otherwise (the “Parent Benefit PlanPlans”). Parent Benefit Plans that cover current or former employees, consultants, contractors, officers, or directors (or their equivalent) of the Parent and its Subsidiaries are separately identified, by the applicable country, on Section 4.19 of the Parent Disclosure Schedule.
(b) The In respect of each Parent Benefit Plan, a complete and correct copy of each of the following documents (if applicable) has been made available to the Company has previously provided to Local Insight true and complete copies ofthe APAR Holders: (i) each written Company Benefit Planthe most recent plan and related trust documents, and all amendments thereto; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each most recent summary plan description, and all related summaries of the last three years; material modifications thereto, (iii) the most recent determination letter from the IRS Form 5500 (if applicable) for each Company Benefit Planincluding, schedules and attachments); (iv) the current summary plan description most recent Internal Revenue Service (“IRS”) determination, opinion or notification letter; and (v) the most recent actuarial reports (including for purposes of each Company Financial Accounting Standards Board report nos. 87, 106 and 112).
(c) None of the Parent Benefit Plan that Plans or Parent Employee Arrangements is subject to Title IV of ERISA; (v) , constitutes a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “retirement plan or is a multiemployer plan” (as defined plan described in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to neither the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against Parent nor any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company its Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential has any obligation or liability by reason (contingent or otherwise) in respect of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentssuch plans.
(d) Except as described in The Parent Benefit Plans and their related trusts intended to qualify under Section 3.12(d401 and 501(a) of the Contributor Disclosure Schedulecode, neither respectively, have either received a favorable determination, opinion or notification letter from the IRS with respect to each such Parent Benefit Plan as to its qualified status under the Code, or has remaining a period of time under applicable U.S. Treasury regulations or IRS pronouncements in which to apply for such a letter and make any amendments necessary to obtain a favorable determination as to the qualified status of each such Parent Benefit Plan. Any voluntary employee benefit association that provides benefits to current or former employees of Parent or any of its Subsidiaries, or their beneficiaries, is and has been qualified under Section 501(c)(9) of the Code.
(e) All contributions or other payments required to have been made by Parent or any of its Subsidiaries to or under any Parent Benefit Plan or Parent Employee Arrangement by applicable Law or the terms of such Parent Benefit Plan or Parent Employee Arrangement (or any agreement relating thereto) have been timely and properly made.
(f) The Parent Benefit Plans and Parent Employee Arrangements have been maintained and administered in all material respects in accordance with their terms and applicable Laws. In particular, no individual who has performed services for Parent or any of its Subsidiaries has been improperly excluded from participation in any Parent Benefit Plan or Parent Employee Arrangement.
(g) There are no pending or, to Parent’s knowledge, threatened actions, claims, or proceedings against or relating to any Parent Benefit Plan or Parent Employee Arrangement (other than routine benefit claims by persons entitled to benefits thereunder) and, to the knowledge of Parent, there are no facts or circumstances which could form the basis for any of the foregoing.
(h) Neither Parent nor any of its Subsidiaries has any obligation or liability (contingent or otherwise) to provide post-retirement life insurance or health benefits coverage for current or former officers, directors, employees, consultants or contractors of Parent or any of its Subsidiaries except (i) as may be required under Part 6 of Title I of ERISA, (ii) a medical expense reimbursement account plan pursuant to Section 125 of the Code, or (iii) through the last day of the calendar month in which the participant terminates employment with Parent or any of its Subsidiaries.
(i) None of the assets of any Parent Benefit Plan is stock of Parent or any of its affiliates, or property leased to or jointly owned by Parent or any of its affiliates.
(j) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement Contemplated Transactions will (either alone or in conjunction with any other event): (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company employee, consultant or contractor (current, former, or retired) of Parent or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; its Subsidiaries, (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Parent Benefit Plan or otherwise; Parent Employee Arrangement or (iii) result in any the acceleration of the time of payment or of vesting of, or other rights in respect of any requirement such benefits (except as which may be required by the partial or full termination of any Parent Benefit Plan intended to fund be qualified under Section 401 of the Code).
(k) To the knowledge of Parent, all employees of the Parent and each of its Subsidiaries who are not United States citizens but who are assigned to the United States operations of Parent or secureany of its Subsidiaries or otherwise travel, from time to time, to the United States on behalf of Parent or any amounts of its Subsidiaries, possess all applicable passports, visas and other authorizations required by the Laws of the United States and have otherwise complied with all applicable immigration and similar Laws of the United States.
(l) To the knowledge of Parent, all employees of Parent or benefits or result in any breach of or default under any Company Benefit Planits Subsidiaries assigned to work outside the United States possess all applicable passports, visas and other authorizations required by the Laws of the respective countries to which they are assigned.
Appears in 1 contract
Employee Plans. (a) Section 3.12(aSchedule 4.9(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Employee Benefit Plan, and, except as set forth therein, the Company has not created, maintained, offered or incurred any obligation under any other Employee Benefit Plan.
(b) The Company has previously provided delivered the following documents to Local Insight true and complete copies ofPurchaser with respect to each of its Employee Benefit Plan: (i) each written Company true, correct and complete copies of all documents embodying such Employee Benefit Plan; , including all amendments thereto, and all related trust documents, (ii) the actuarial report for each Company a written description of any Employee Benefit Plan (if applicable) for each of the last three years; that is not set forth in a written document, (iii) the most recent determination letter from summary plan description together with the IRS (summary or summaries of material modifications thereto, if applicable) for each Company Benefit Plan; any, (iv) the current summary three most recent annual actuarial valuations, if any, (v) all IRS or DOL determination, opinion, notification and advisory letters, (vi) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, (vii) all material correspondence to or from any Governmental Entity received in the last three (3) years, (viii) all discrimination tests for the most recent three (3) plan description years, and (ix) all material written agreements and contracts currently in effect, including administrative service agreements, group annuity contracts, and group insurance contracts.
(c) Each Employee Benefit Plan has been maintained and administered in all respects in material compliance with its terms and with the requirements prescribed by Applicable Law, including the timely and accurate filing of all reports and returns. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Employee Benefit Plans have been timely made or accrued. Each Employee Benefit Plan intended to be qualified under Section 401(a) of the Code and each Company trust intended to qualify under Section 501(a) of the Code is so qualified and has obtained a currently effective favorable determination notification, advisory or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Employee Benefit Plan has been adopted since the date of such letter covering such Employee Benefit Plan that is subject to ERISA; (v) a copy of the description of would adversely affect such favorable determination. The most recent determination notification, advisory or opinion letter for each Company such Employee Benefit Plan has not subject been revoked, and, to ERISA the Sellers’ Knowledge, no fact or event exists that is currently provided could reasonably be expected to participants result in the revocation of such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsqualified status.
(id) Except as set forth on Schedule 4.9(d), no plan currently or ever in the Contributor Disclosure Schedule, each Company Benefit Plan has been past maintained, funded and administered sponsored, contributed to or required to be contributed to by the Company or its current or former ERISA Affiliates is or ever in compliance in all material respects with its terms and applicable Lawthe past was (i) a Multiemployer Plan, including ERISA and the Code; (ii) each a plan described in Section 413 of the Code, (iii) a plan subject to Title IV of ERISA, (iv) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code.
(e) The Company Benefit Plan intended is not subject to be any liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA. The Company has materially complied with all applicable health care continuation requirements under COBRA. No “qualifiedProhibited Transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Employee Benefit Plan.
(f) Except as set forth on Schedule 4.9(f), no Employee Benefit Plan provides, or reflects or represents any liability to provide, benefits (including death or medical benefits), whether or not insured, with respect to any former or current employee, or any spouse or dependent of any such employee, beyond the employee’s retirement or other termination of employment with the Company other than (i) coverage mandated by COBRA, (ii) retirement or death benefits under any plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRSCode, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation disability benefits that have been fully provided for by insurance under (or with respect to) (A) any an Employee Benefit Plan that constitutes an “defined employee welfare benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 (3)(1) of ERISA ERISA, or (iv) benefits in the nature of severance pay with respect to one or more of the employment contracts set forth on Schedule 4.9(f).
(g) There is no contract, plan or arrangement covering any officer, employee or former officer or employee of the Company that, individually or collectively, could give rise to the payment as a result of the transactions contemplated by this Agreement of any amount that would not be deductible by the Company by reason of Section 413(c) 280G of the Code; (iv) no liability under Title IV . For purposes of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Companyforegoing sentence, the Company Subsidiaries term “payment” shall include any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, obligation to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for fund benefits. Except as set forth on Schedule 4.9(g), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will (either alone or in conjunction together with any other event): event which, standing alone, would not by itself trigger such entitlement or acceleration) will not (i) result entitle any Person to any payment, forgiveness of indebtedness, vesting, distribution, or increase in benefits under or with respect to any Employee Benefit Plan, (ii) otherwise trigger any acceleration (of vesting or payment of benefits or otherwise) under or with respect to any Employee Benefit Plan, or (iii) trigger any obligation to fund any Employee Benefit Plan.
(h) Except as set forth on Schedule 4.9(h), no Proceeding (excluding claims for benefits incurred in the Company ordinary course) has been brought or is pending or threatened against or with respect to any Employee Benefit Plan or the assets or any fiduciary thereof (in that Person’s capacity as a fiduciary of such Employee Benefit Plan). There are no Proceedings pending or threatened by the Company Subsidiaries being liable for IRS, DOL, or other Governmental Entity with respect to any payment or benefit Employee Benefit Plan.
(including non-deductible remuneration i) With respect to each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as described in defined for purposes of Section 162(m409A(d)(1) of the Code) severance), retentionsuch plan has been maintained and operated in compliance with Section 409A of the Code and the applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any tax, stay-putinterest or penalty thereunder. Except as set forth on Schedule 4.9(i), change no Securities or Equity Interests in the Company are subject to a substantial risk of control, unemployment compensation, “excess parachute payment” (forfeiture within the meaning of Section 280G 83 of the Code), tax gross-up, forgiveness of indebtedness or otherwiseCode with respect to which a valid election under Section 83(b) becoming due to any Person from the Company or any of the Code has not been made.
(j) The Company Subsidiaries under any Company has, and after Closing will have, all power and authority necessary to amend or terminate its participation in each Employee Benefit Plan not mandated to be provided under Applicable Law without incurring any penalty or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planliability.
Appears in 1 contract
Employee Plans. All employee benefit, welfare, bonus, deferred compensation, pension, profit sharing, stock option, employee stock ownership, consulting, severance, or fringe benefit plans, formal or informal, written or oral and all trust agreements related thereto, relating to any present or former directors, officers or employees of Crestar or the Crestar Subsidiaries (a"Crestar Employee Plans") Section 3.12(a) of are listed in the Contributor Crestar Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Letter. Except as set forth on in the Contributor Crestar Disclosure ScheduleLetter, each Company Benefit Plan has all of the Crestar Employee Plans have been maintained, funded operated, and administered in all material respects in compliance with their terms and currently comply, and have at all relevant times complied, in all material respects with its terms and the applicable Lawrequirements of ERISA, including ERISA and the Code; , and any other applicable laws. Except as set forth in the Crestar Disclosure Letter, with respect to each Crestar Employee Plan which is a pension plan (iias defined in Section 3(2) of ERISA): (a) each Company Benefit Plan pension plan as amended (and any trust relating thereto) intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code either has received been determined by the IRS to be so qualified or is the subject of a favorable pending application for such determination letter that was timely filed, (b) there is no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, and no waiver of the minimum funding standards of such sections has been requested from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of (c) neither Crestar nor any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company SubsidiaryCrestar Subsidiaries has provided, or is required to provide, security to any other Company ERISA Affiliate maintainspension plan pursuant to Section 401(a)(29) of the Code, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect tod) (A) any “the fair market value of the assets of each defined benefit plan” plan (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) exceeds the value of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” "benefit liabilities" within the meaning of Section 210 4001(a)(16) of ERISA under such defined benefit plan as of the end of the most recent plan year thereof ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such defined benefit plan as of the date hereof, (e) no reportable event described in Section 4043 of ERISA has occurred for which the 30 day reporting requirement has not been waived has occurred, (f) no defined benefit plan has been terminated, nor has the PBGC instituted proceedings to terminate a defined benefit plan or to appoint a trustee or administrator of a defined benefit plan, and no circumstances exist that constitute grounds under Section 4042(a)(2) of ERISA entitling the PBGC to institute any such proceedings and (g) no pension 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; (iv) no . Neither Crestar nor any Crestar Subsidiary has incurred any liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, PBGC with respect to any "single-employer plan" within the Company Subsidiaries or any other Company ERISA Affiliate meaning of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i4001(a)(15) of ERISA currently or a material Tax imposed pursuant to formerly maintained by any entity considered one employer with it under Section 4975 4001 of ERISA or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code Code, except for premiums all of which have been paid when due. Neither Crestar nor any of its subsidiaries has incurred any withdrawal liability with respect to a multiemployer plan under Subtitle E of Title IV of ERISA. Neither Crestar nor any Person of its subsidiaries has an obligation to institute any Employee Plan or any such other than arrangement, agreement or plan. Except as set forth in the Company Crestar Disclosure Letter, there are no outstanding grants of restricted stock with respect to Crestar Common Stock and no outstanding stock appreciation rights with respect to Crestar Common Stock. With respect to any insurance policy that heretofore has or currently does provide funding for benefits under any Crestar Employee Plan, (A) there is no liability on the Company Subsidiaries; (x) each Company Benefit Plan that constitutes part of Crestar or any of its subsidiaries in the nature of a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; retroactive or retrospective rate adjustment, loss sharing arrangement, or other actual or contingent liability, nor would there be any such liability if such insurance policy was terminated, and (xiB) no insurance Crestar issuing such policy is in receivership, conservatorship, liquidation or similar proceeding and, to the Company and the Company Subsidiaries haveknowledge of Crestar, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) no such proceeding with respect to any such insurer is imminent. Except as described set forth in Section 3.12(d) of the Contributor Crestar Disclosure ScheduleLetter, neither the execution and delivery of this Agreement Agreement, nor the consummation of the transactions contemplated by this Agreement thereby will (either alone or in conjunction with A) constitute a stated triggering event under any other event): (i) Crestar Employee Plan that will result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) whether of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness severance pay or otherwise) becoming due to any Person from the Company Crestar or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due its subsidiaries to any Person under present or former officer, employee, director, shareholder, consultant or dependent of any Company Benefit Plan or otherwise; of the foregoing or (iiiB) result in any acceleration of accelerate the time of payment or vesting ofvesting, or increase the amount of compensation due to any requirement to fund present or secureformer officer, employee, director, shareholder, consultant, or dependent of any amounts or of the foregoing. The material terms of the Executive Agreements (as defined below) are reflected in the Crestar SEC Reports, as amended in the manner reflected in the Crestar Disclosure Letter. Neither Crestar nor any Crestar Subsidiary has any obligations for retiree health and life benefits or result in any breach of or default under any Company Benefit Crestar Employee Plan, except as set forth in the Crestar Disclosure Letter. Except as set forth in the Crestar Disclosure Letter, there are no restrictions on the rights of Crestar or the Crestar Subsidiaries to amend or terminate any such Crestar Employee Plan without incurring any liability thereunder.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.10(a) of the Contributor Company Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true all benefit and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedulecompensation plans, each Company Benefit Plan has been maintainedcontracts, funded and administered in compliance in all material respects with its terms and applicable Lawpolicies or arrangements, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” employee benefit plan within the meaning of Section 3(3) of ERISA, benefit program or practice providing for bonuses, incentive compensation, vacation pay, severance pay, insurance, restricted stock, stock options, employee discounts, company cars, tuition reimbursement or any other perquisite or benefit, which is currently maintained or contributed to (or with respect to which any obligation to contribute has been undertaken) by the Company or any ERISA Affiliate for the benefit of current or former employees of the Company and the Company Subsidiaries and current or former directors of the Company and the Company Subsidiaries (collectively, the “Employee Programs”). Each Employee Program that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service (the “IRS”) regarding its qualification thereunder and, to the Company’s knowledge, no event has occurred and there are no circumstances condition exists that would is reasonably be expected to adversely affect result in the qualified status revocation of any such determination.
(b) With respect to each Employee Program, the Company Benefit Planhas provided, or made available, to Parent (if applicable to such Employee Program): (i) all documents embodying or governing such Employee Program, and each such Company Benefit Plan has been timely amended any funding medium for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted Employee Program (including trust agreements); (ii) the most recent IRS determination or opinion letter with respect to such Employee Program under Section 401(a) of the IRS for a determination letter on the GUST legislation within the applicable remedial amendment periodCode; (iii) none the most recently filed IRS Forms 5500; (iv) the most recent summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) all correspondence with the Department of Labor or the IRS; and (vi) any insurance policy information related to such Employee Program.
(c) Each Employee Program has been administered in accordance with the requirements of applicable Law, including ERISA and the Code, except as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, and has been administered and operated in all material respects in accordance with its terms. No Employee Program is subject to Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, is a voluntary employees’ beneficiary association or is a multiemployer plan within the meaning of ERISA Section 3(37).
(d) Full payment has been made, or otherwise properly accrued on the books and records of the Company and any ERISA Affiliate, of all amounts that the Company and any ERISA Affiliate are required under the terms of the Employee Programs to have paid as contributions to such Employee Programs on or prior to the date hereof (excluding any amounts not yet due) and the contribution requirements, on a prorated basis, for the current year have been made or otherwise properly accrued on the books and records of the Company through the Closing Date.
(e) Neither the Company, an ERISA Affiliate or any person appointed or otherwise designated to act on behalf of the Company, or an ERISA Affiliate, nor, to the knowledge of the Company, any Company Subsidiary, other “disqualified person” or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit planparty in interest” (as defined in Section 3(354975(e)(2) of the Code and Section 3(14) of ERISA), (Brespectively) has engaged in any “multiemployer plan” (as defined transactions in connection with any Employee Program that is reasonably expected to result in the imposition of a material penalty pursuant to Section 3(37502(i) of ERISA, material damages pursuant to Section 409 of ERISA or a material Tax pursuant to Section 4975(a) of the Code.
(f) No material liability, claim, action or litigation has been made, commenced or, to the knowledge of the Company, threatened with respect to any Employee Program (other than claims for benefits payable in the ordinary course of business).
(g) Except as set forth in Section 3.10(a) of the Company Disclosure Schedule, (C) any benefit plan, program, agreement, or arrangement that no Employee Program provides for post-retirement or post-termination medical, life insurance or other welfare-type welfare plan benefits (other than under Section 4980B of the Code or state health continuation Laws) to any current or future retiree or former employee and all such plans have effectively reserved the right to amend or terminate such plans without participant consent.
(h) Except as described set forth in Section 3.12(d3.10(h) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any contract, agreement, plan or arrangement covering any persons that, individually or collectively, could give rise to the payment of any amount that would not be deductible by reason of Section 280G of the Code, or would constitute compensation in excess of the limitations set forth in Section 162(m) of the Code.
(i) Except as set forth in Section 3.10(i) of the Company Disclosure Schedule, none of the execution and delivery of this Agreement, shareholder approval of this Agreement nor the or consummation of the Merger or the other the transactions contemplated by this Agreement will (either alone or in conjunction with any other event): (i) result in entitle any employee of the Company or any Company Subsidiary to severance pay or any increase in severance pay upon any termination of employment after the Company Subsidiaries being liable for date hereof, (ii) accelerate the time of payment or vesting or trigger any payment or benefit funding (including non-deductible remuneration (as described in Section 162(mthrough a grantor trust or otherwise) of the Codecompensation or benefits under, any Employee Program (other than as contemplated by Section 2.1(e)), (iii) severanceresult in any breach or violation of, retentionor a default under, stay-put, change of control, unemployment compensation, any Employee Program or (iv) result in any payment that would be a “excess parachute payment” (within the meaning of to a “disqualified individual” as those terms are defined in Section 280G of the Code), tax gross-up, forgiveness of indebtedness without regard to whether such payment is reasonable compensation for personal services performed or otherwise) becoming due to any Person from be performed in the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planfuture.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth 4.17 contains a true and complete list of Employee Plans. With respect to each Company Benefit such Employee Plan.
(b) The , the Company has previously provided to Local Insight Sub true and complete copies of: of (i) each written Company Benefit Plan; all plan documents and related trust agreements, annuity contracts or other funding instruments, (ii) all summary plan descriptions, summary of material modifications, all material employee communications, the actuarial report for each Company Benefit Plan (if applicable) for each number of and a general description of the last three years; level of employees covered by each Benefit Arrangement and a complete description of any Employee Plan which is not in writing, (iii) the most recent determination letter from issued by the IRS Internal Revenue Service and any opinion letter issued by the Department of Labor with respect to each Pension Plan and each voluntary employees' beneficiary association as defined under Section 501(c)(9) of the Code (if applicable) for each Company Benefit other than a Multiemployer Plan; ), (iv) for the current summary three most recent plan description of years, the Internal Revenue Service Form 5500 including all schedules and attachments thereto for each Company Benefit Pension Plan that is subject to ERISA; and Welfare Plan, (v) a copy of all actuarial reports prepared for the description of last three plan years for each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; Pension Plan, and (vi) a summary description setting forth the amount of any liability of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each its Subsidiaries as of the last three yearsClosing Date for payments more than thirty (30) calendar days past due with respect to any Welfare Plan.
(i) Except as set forth on the Contributor Disclosure ScheduleEach Employee Plan including any related trust agreement, each Company Benefit Plan has been maintainedannuity contract or other funding instrument is legal, funded valid and administered binding and in compliance in all material respects with its terms full force and applicable Law, including ERISA and the Code; effect.
(ii) Each Pension Plan and each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code related trust agreement, annuity contract or other funding instrument which has been operated as a qualified plan has received a favorable determination letter from the IRS, and there are no circumstances Internal Revenue Service stating that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, Pension Plan and each related trust is qualified and tax-exempt under the provisions of Code Sections 401(a) and 501(a) and has been so qualified during the period from its adoption to the date of such Company Benefit determination letter.
(iii) Each Employee Plan is subject only to the laws of the United States or a political subdivision thereof.
(iv) Each Employee Plan has been timely amended for maintained in compliance in all material respect to its terms and operation, with the legislation commonly known requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Employment Plan, including, without limitation, ERISA and the Code.
(v) Except as “GUST” and “EGTRRA” and has been submitted to provided by law or in any employment agreement set forth on Schedule 4.17, the IRS for a determination letter on employment of all persons presently employed or retained by the GUST legislation within the applicable remedial amendment period; Company or its Subsidiaries is terminable at will.
(iiii) none None of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, Employee Plans is a plan that is or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) ever been subject to Title IV of ERISA), Section 302 of ERISA or Section 412 of the Code. (Bii) any “multiemployer plan” (as defined in Section 3(37) None of ERISA), (C) any benefit plan, program, agreement, the Employee Plans is a plan or arrangement that provides for post-retirement described under Section 4(b)(5) or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40401(a)(1) of ERISA, or a plan maintained in connection with a trust described in Section 501(c)(9) of the Code.
(Eiii) “multiple employer plan” within Neither the meaning Company nor any ERISA affiliate has, at any time, maintained, contributed to or had any obligation to maintain or contribute to any Multiemployer Plan.
(i) Neither the Company nor any ERISA Affiliate has engaged in, or is a successor or parent corporation to an entity that has engaged in, a transaction described in Section 4212(c) of ERISA.
(ii) None of the Company, or its Subsidiaries or any plan fiduciary of any Employee Plan has engaged in, or has any liability in respect of, any transaction in violation of Sections 404 or 406 of ERISA or any "prohibited transaction," as defined in Section 210 4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA or Section 413(c4975(c)(2) or (d) of the Code; , or has otherwise
(iii) The Company and its Subsidiaries have not been assessed any civil penalty under Section 502(l) of ERISA.
(iv) no No Employee Plan (or trust or other funding vehicle pursuant thereto) has incurred any liability under Code Section 511.
(e) Except as required by Section 4980B of the Code or Part 6 of Title IV 1, Subtitle B of ERISA has been incurred by a ERISA, neither the Company nor any ERISA Affiliate that or any Welfare Plan has not been satisfied in fullany present or future obligation to make any payment to, or with respect to any present or former employee of the Company or any ERISA Affiliate pursuant to any retiree medical benefit plan, or other retiree Welfare Plan, and no condition exists that presents a risk to the Company, which would prevent the Company Subsidiaries or an ERISA affiliate from amending or terminating any other Company ERISA Affiliate of incurring a liability thereunder; such benefit plan or such Welfare Plan.
(vf) none of the CompanyThere is no contract, agreement, plan or arrangement covering any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction employee or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any former employee of the Company Benefit Plans; (vii) all paymentsor its Subsidiaries that, premiumsindividually or collectively, contributions, distributions, reimbursements or other amounts required to be paid requires the payment by the Company or the Company its Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; any amount (viiii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer that is not deductible under Section 414 162(a)(1) or 404 of the Code with any Person other than the Company and the Company Subsidiaries; or (xii) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of is an "excess parachute payment" pursuant to Section 409A 280G of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsCode.
(dg) Except as described in Section 3.12(d) Neither the Company nor any ERISA Affiliate has announced to employees, former employees or directors an intention to create, or has otherwise created, a legally binding commitment to adopt any additional Employee Plans which are intended to cover employees or former employees of the Contributor Disclosure ScheduleCompany or any subsidiary or to amend or modify any existing Employee Plan which covers or has covered employees or former employees of the Company or any subsidiary.
(h) Neither the Company nor any Employee Plan holds as an asset any interest in any annuity contract, neither guaranteed investment contract or any other investment or insurance contract issued by an insurance company that is the subject of bankruptcy, conservatorship or rehabilitation proceedings. The insurance policies or other funding instruments, if any, for each Welfare Plan provide coverage for each employee, consultant, independent contractor or retiree of the Company or its Subsidiaries (and, if applicable, their respective dependents) who has been advised by the Company or its Subsidiaries, whether through an Employee Plan or otherwise, that he or she is covered by such Welfare Plan.
(i) Neither the execution and delivery of this Agreement or other related agreements by the Company nor the consummation of the transactions contemplated by this Agreement hereby or the related transactions will (either alone or in conjunction with any other event): (i) result in the acceleration or creation of any rights of any person to benefits under any Employee Plan (including, without limitation, the acceleration of the vesting or exercisability of any share options, the acceleration of the vesting of any restricted stock, the acceleration of the accrual or vesting of any benefits under any Pension Plan or the acceleration or creation of any rights under any severance, parachute or change in control agreement).
(j) No event has occurred in connection with which the Company or any Employee Plan, directly or indirectly, could be subject to any material liability (A) under any statute, regulation or governmental order relating to any Employee Plan or (B) pursuant to any obligation of the Company Subsidiaries being liable for to indemnify any payment person against liability incurred under any such statute, regulation or benefit order as they relate to the Employee Plans.
(including non-deductible remuneration k) The Company is not a party to any severance or similar arrangement in respect of any of the Personnel that will result in any obligation (as described in Section 162(mabsolute or contingent) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within Company or Sub after the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due Closing to make any payment to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration such Personnel following termination of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planemployment.
Appears in 1 contract
Samples: Merger Agreement (Odyssey Investment Partners Fund LLC)
Employee Plans. (ai) Section 3.12(aSchedule 4.1(gg)(i) of the Contributor CRH Disclosure Schedule Letter sets forth a true true, complete, up-to-date and accurate list of all Employee benefit, welfare, bonus, pension, profit sharing, executive compensation, current or deferred compensation, incentive compensation, stock compensation, stock purchase, stock option, stock appreciation, phantom stock option, savings, severance or termination pay, retirement, supplementary retirement, hospitalization insurance, salary continuation, legal, health or other medical, dental, life, disability or other insurance (whether insured or self-insured) plan, program, agreement or arrangement, and every other written or oral benefit plan, program, agreement or arrangement sponsored, maintained or contributed to or required to be contributed to by CRH or any Affiliate of CRH for the benefit of the Employees or former Employees and their dependants or beneficiaries at any time in the last three (3) years or as provided by any collective agreement to which CRH is a party or by which it is, or was at any time in the last five years, bound or with respect to which CRH participates or has any actual or potential liability or obligations, other than plans established pursuant to statute (collectively the “Employee Plans”). CRH has made available to Purchaser current, true, correct and complete list copies of each Company Benefit PlanEmployee Plan (as applicable, and including any subsequent amendments or changes), including without limitation the plan document, trust agreement, summary plan description, latest available favorable determination or opinion letter from the Internal Revenue Service (“IRS”), and most recently filed Form 5500 with all schedules, and for any Employee Plan not set forth in writing, a written description of all material terms thereof.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each All of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure ScheduleEmployee Plans have been established, each Company Benefit Plan has been maintainedregistered, funded sponsored, qualified, funded, invested and administered in compliance in all material respects with its terms in accordance with, and applicable are in good standing under, all Applicable Benefits Laws. None of the Employee Plans enjoys any special Tax status under Applicable Benefits Law, including ERISA nor have any advance Tax rulings been sought or received in respect of the Employee Plans.
(iii) No Employee Plan is, and the Code; (ii) each Company Benefit Plan intended to be CRH does not have any liability with respect to: an “qualifiedemployee pension benefit plan”, a “multiemployer plan”, a “multiple employer plan”, a “multiple employer welfare arrangement”, a “registered pension plan” or a “retirement compensation arrangement” within the meaning of Applicable Benefits Laws. No Employee Plan provides for post-employment or post-retirement health, life or other welfare benefits to Employees or former Employees (or their beneficiaries or dependents).
(iv) Each Employee Plan that is intended to qualify under Code Section 401(a) of the Code has received so qualifies and can rely on a current favorable determination or opinion letter from the IRSIRS as to its qualified status and, and there are to the knowledge of CRH, no circumstances that event has occurred with respect to any such Employee Plan which would reasonably be expected to adversely affect result in the revocation or loss of such qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; status.
(v) none No amendments have been made to any Employee Plan and no amendments or improvements to any Employee Plan will be made or promised prior to Effective Date.
(vi) All of the Company, any Company Subsidiary ormaterial obligations of CRH regarding the Employee Plans have been satisfied and, to the Knowledge knowledge of the ContributorsCRH, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pendingoutstanding defaults or violations by any party thereto and no Taxes, orpenalties or fees are owing or exigible under any of the Employee Plans other than in the ordinary course of business.
(vii) All contributions or premiums required to be made by CRH under the terms of each Employee Plan or by Applicable Benefits Laws have, to the Knowledge knowledge of CRH, been made.
(viii) To the Contributorsknowledge of CRH, no Employee Plan, nor any related trust or other funding medium thereunder, is subject to any pending, threatened or anticipated claims investigation, examination or other Legal Proceeding initiated by any Governmental Authority or by any other Person (other than routine claims for benefits), auditsand, investigationsto the knowledge of CRH, proceedingsthere exists no state of facts which after notice or lapse of time or both would reasonably be expected to give rise to any such investigation, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements examination or other amounts Legal Proceeding or to affect the registration of any Employee Plan required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or registered.
(ix) Except as disclosed in Schedule 4.1(gg)(ix) of the Closing Date CRH Disclosure Letter, neither the execution of this Agreement nor the completion of the transactions contemplated hereby will constitute an event under any Employee Plan that will result in any material payment (whether of severance pay or otherwise), acceleration of material payment or vesting of material benefits, forgiveness of material indebtedness, vesting, distribution, material restriction on funds, material increase in benefits or obligation to fund material benefits with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the Employee. The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will hereby (either alone or in conjunction together with any other event): (ievent or transaction) will not result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute paymentpayments” (within the meaning of as such term is defined in Section 280G of the Code), tax gross-up, forgiveness ) or in the imposition of indebtedness or otherwise) becoming due to any Person from the Company or any Tax under Section 4999 of the Company Subsidiaries under any Company Benefit Code.
(x) All data necessary to administer each Employee Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit is in the possession of CRH and is in a form which is sufficient for the proper administration of such Employee Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Planaccordance with its terms and all applicable Laws and such data is complete and correct.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of Shareholders have heretofore delivered to the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true Buyer true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letter relating to each written Company Benefit of CC, CCT and each Joint Venture Company's pension, profit-sharing, stock bonus or other deferred compensation arrangements, if any, listed in EXHIBIT 3.3(m) hereto for which a letter was obtained except for any multi-employer plans sponsored by any of them (each a "Plan; " and collectively the "Plans");
(ii) the actuarial report most recent Annual Report (Form 5500 series) and accompanying schedules of each Plan currently sponsored by any of them, with respect to which the same are required, as filed pursuant to applicable law; and
(iii) all plan documents, as amended to date, summary plan descriptions and summaries of material modifications and all plan termination documentation with respect to each Plan and employee welfare plan presently or in the past sponsored by CC, CCT or any of the Joint Venture Companies, as well as the most recent financial statements of each of such plans, except for the multi-employer plans referred to below. With respect to each Company Benefit of such Plans as to which an Annual Report (Form 5500 series) is required to be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material change has occurred with respect to the matters covered by the last Annual Report since the date thereof. Shareholders do not know, nor have any reasonable grounds to know, of any "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, which has ever been engaged in by any Shareholder, CC, CCT or any of the Joint Venture Companies, or by any Plan sponsored by any of them, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on prohibited transactions imposed by Section 4975 of the Code. There are no actions, suits or claims pending or, to the best of Shareholders' knowledge after due inquiry, threatened, against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any of said trusts have incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA or Section 412(a) of the Code (if applicable) for whether or not waived), since the date of ERISA. The terms and operation of each of the last three years; (iii) Plans have complied to the most recent determination letter from extent required with the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning provisions of Section 401(a) of the Code has received a favorable determination letter from the IRSand with ERISA, and there are no circumstances that would reasonably be expected to adversely affect all reports and notices required by ERISA or the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has Code have been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted duly filed or given. Shareholders shall deliver to the IRS for Buyer a determination letter on list of all of CC, CCT and all the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Joint Venture Companies Plans subject to Title IV of ERISA and all trusts created thereunder which have been terminated, and all "reportable events," as that term is defined in Section 4043 of ERISA. Except as may be specified in EXHIBIT 3.3(m) hereto, none of such Plans and no such trust has been incurred by a Company ERISA Affiliate that terminated, nor has not been satisfied in full, and no condition exists that presents a risk any such "reportable event" occurred with respect to any such Plans since the Company, the Company Subsidiaries or any other Company ERISA Affiliate effective date of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits byERISA. The present value, on behalf a plan termination basis, of all benefits accrued under each Plan sponsored or against contributed to by CC, CCT or any of the Company Benefit Plans; (vii) all paymentsJoint Venture Companies and subject to Title IV of ERISA did not, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit most recent valuation date, exceed the fair market value of the assets of such Plan have been made or properly accrued; (viii) the Companyas of such date. CC, the Company Subsidiaries CCT and the other Company ERISA Affiliates Joint Venture Companies have complied and are in compliance in all material respects with COBRAnever been sponsors of, and/or a contributing employer to, a multi-employer pension plan subject to the provisions of Section 4201, ET SEQ., of ERISA; (ix) the Company and the Company Subsidiaries or if they have, they have no current or potential obligation or never incurred any withdrawal liability by reason of being treated thereunder, nor will they incur any such liability as a single employer under Section 414 result of the Code with consummation of any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement agreement; or if they will, at or prior to the Closing Date, they will (either alone pay or otherwise satisfy such liability in conjunction full and/or establish an escrow fund or secure a bond in an appropriate amount with any other event): (i) result respect to the same with an escrow agent and/or a bonding company reasonably satisfactory to the Buyer and in the Company or a manner agreeable to applicable law. Neither CC, CCT nor any of the Company Subsidiaries being liable for Joint Venture Companies have ever been a sponsor of, or a contributing employer to, a single employer pension plan subject to the provisions of Section 4041, ET SEQ., of ERISA; nor have they ever incurred any payment liability thereunder or benefit (including non-deductible remuneration (under Section 4062, ET SEQ., of ERISA, nor will any of them incur any such liability as described in Section 162(m) a result of the Code) severance, retention, stay-put, change consummation of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwisetransactions contemplated by this agreement; or (iii) result if any of them will, at or prior to the Closing Date, they will pay or otherwise satisfy such liability in any acceleration of the time of payment or vesting of, or any requirement to full and/or establish an escrow fund or secure, any amounts or benefits or result secure a bond with respect to the same as provided in any breach of or default under any Company Benefit Planthe preceding sentence.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a5.11(a) of the Contributor Local Insight Disclosure Schedule sets forth a true and complete list of each Company Local Insight Benefit Plan.
(b) The Company Local Insight has previously provided to Local Insight the Company (to the extent available) true and complete copies of: (i) each written Company Local Insight Benefit Plan; (ii) the actuarial report for each Company Local Insight Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Local Insight Benefit Plan; (iv) the current summary plan description of each Company Local Insight Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Local Insight Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Local Insight Benefit Plan; and (vii) the annual report for each Company Local Insight Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Each Local Insight Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Local Insight Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Local Insight Benefit Plan, and each such Company Local Insight Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the CompanyLocal Insight, any Company Subsidiary, Local Insight Subsidiary or any other Company Local Insight ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedulebenefits, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company Local Insight ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the CompanyLocal Insight, the Company Local Insight Subsidiaries or any other Company Local Insight ERISA Affiliate of incurring a liability thereunder; (v) none of the CompanyLocal Insight , any Company Local Insight Subsidiary or, to the Knowledge of the ContributorsLocal Insight, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the CompanyLocal Insight, the Company Local Insight Subsidiaries or any Company Local Insight Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the ContributorsLocal Insight, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Local Insight Benefit Plans; (viiviii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company Local Insight or the Company Local Insight Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Local Insight Benefit Plan have been made or properly accrued; accrued (viii) the CompanyLocal Insight, the Company Local Insight Subsidiaries and the other Company Local Insight ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company Local Insight and the Company Local Insight Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company Local Insight and the Company Local Insight Subsidiaries; (x) each Company Local Insight Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company Local Insight and the Company Local Insight Subsidiaries have, for purposes of each Company Local Insight Benefit Plan, correctly classified those individuals performing services for the Company Local Insight and the Company Local Insight Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d5.11(a) of the Contributor Local Insight Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Local Insight Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any such amounts or benefits or result in any breach of or default under any Company Local Insight Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.11(a) of the Contributor Company Disclosure Schedule Schedules sets forth a true and complete list of all material Employee Benefit Plans. With respect to each Company material Employee Benefit Plan, the Group Companies have provided CHFW with true and complete copies of the material documents pursuant to which the plan is maintained, funded and administered. The Company does not maintain any Employee Benefit Plans for its current or former employees, officers, directors or other individual service providers located outside of the United States and no Employee Benefit Plan is subject to the laws of any jurisdiction outside the United States.
(b) The Company has previously provided True, complete and correct copies of the following documents, with respect to Local Insight true and complete copies ofeach Employee Benefit Plan, where applicable, have been made available to CHFW: (i) each all documents embodying or governing such Employee Benefit Plan (or for unwritten Employee Benefit Plans a written Company description of the material terms of such Employee Benefit Plan) and any funding medium for the Employee Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three yearsmost recent IRS determination, advisory or opinion letter; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Planrecently filed Form 5500; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISAmost recent actuarial valuation report; (v) a copy of the most recent summary plan description of each Company Benefit Plan not subject to ERISA that is currently (or other descriptions provided to participants in such planemployees) and all modifications thereto; (vi) a summary the last three years of the material terms of each unwritten Company Benefit Plannon-discrimination testing results; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsall non-routine correspondence to and from any governmental agency.
(c) No Group Company has ever maintained, contributed to, been required to contribute to or has any Liability with respect to or under: (i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Codea Multiemployer Plan; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), whether or not subject to ERISA) or a plan that is or was subject to Title IV of ERISA Section 412 of the Code or Section 312 of ERISA; (Biii) any a “multiemployer multiple employer plan” (as defined in within the meaning of Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d413(c) of the Contributor Disclosure Schedule, Code or Section 210 of ERISA; (Div) any a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, ; or (Ev) “multiple employer plan” any funded welfare benefit plan within the meaning of Section 210 of ERISA or Section 413(c) 419 of the Code; (iv) no liability under Title IV . No Group Company has any material Liabilities to provide any retiree or post-termination or power-ownership health or life insurance or other welfare-type benefits to any Person other than health continuation coverage pursuant to COBRA or similar Law and for which the recipient pays the full cost of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, coverage and no condition exists that presents a risk Group Company has ever promised to the Company, the provide such benefits. No Group Company Subsidiaries or has any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability Liabilities by reason of at any time being treated as considered a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsPerson.
(d) Except as described in Each Employee Benefit Plan that is intended to be qualified under Section 3.12(d401(a) of the Contributor Disclosure ScheduleCode is so qualified and has timely received a favorable determination or opinion or advisory letter issued by the IRS with respect to a volume submitter or prototype plan adopted in accordance with the requirements for such reliance, neither or has time remaining for application to the IRS for a determination of the qualified status of such Employee Benefit Plan for any period for which such Employee Benefit Plan would not otherwise be covered by an IRS determination and, to the knowledge of the Company, no event or omission has occurred that would cause any Employee Benefit Plan to lose such qualification or require corrective action to the IRS or Employee Plan Compliance Resolution System to maintain such qualification. None of the Group Companies has incurred (whether or not assessed) any material penalty or Tax under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code.
(e) Each Employee Benefit Plan is and has been established, operated, and administered in all material respects in accordance with applicable laws and regulations and with its terms, including without limitation ERISA, the Code, and the Affordable Care Act. As of the date hereof, there are no pending or, to the Company’s knowledge, threatened, material claims or Proceedings with respect to any Employee Benefit Plan (other than routine claims for benefits). There have been no non-exempt “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Employee Benefit Plan. With respect to each Employee Benefit Plan, all contributions, distributions, reimbursements and premium payments that are due have been timely made, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. No Employee Benefit Plan is, or within the past six (6) years has been, the subject of an application or filing under a government sponsored amnesty, voluntary compliance, or similar program, or been the subject of any self-correction under any such program.
(f) The execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will not materially (either alone or in conjunction combination with any other event): ) (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to or result in the forgiveness of any Person from the Company indebtedness of any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Company Subsidiaries under any Company Benefit Plan or otherwise; Group Companies, (ii) increase the amount or value of any amounts compensation or benefits otherwise payable or due to any Person under current or former director, manager, officer, employee, individual independent contractor or other service providers of any Company Benefit Plan or otherwise; of the Group Companies or (iii) result in any the acceleration of the time of payment or vesting ofvesting, or trigger any requirement to fund payment or secure, funding of any amounts compensation or benefits to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies.
(g) No amount that could be received (whether in cash or property or the vesting of property) by any “disqualified individual” of any of the Group Companies under any Employee Benefit Plan or otherwise as a result of the consummation of the Transactions could, separately or in the aggregate, be nondeductible under Section 280G of the Code or subjected to an excise tax under Section 4999 of the Code.
(h) The Group Companies have no obligation to make a “gross-up” or similar payment in respect of any taxes that may become payable under Section 4999 or 409A of the Code.
(i) Any transfer of property which was subject to a substantial risk of forfeiture and which would otherwise have been subject to taxation under Section 83(a) of the Code is covered by a valid and timely filed election under Section 83(b) of the Code, and a copy of such election has been provided to the Company.
(j) Each Employee Benefit Plan that constitutes in any breach part a nonqualified deferred compensation plan within the meaning of or default Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be made under any Company Employee Benefit PlanPlan is, or to the knowledge of the Company, will be, subject to the penalties of Section 409A(a)(1) of the Code.
Appears in 1 contract
Samples: Business Combination Agreement (Consonance-HFW Acquisition Corp.)
Employee Plans. (a) Schedule 5.20(a) sets forth: (i) all "employee benefit plans", as defined in Section 3.12(a3(3) of ERISA, and all other material employee benefit programs, policies, arrangements or payroll practices, including, without limitation, any such programs, policies, arrangements or payroll practices providing severance pay, sick leave, vacation pay, salary continuation for disability, retirement benefits, deferred compensation, bonus pay, incentive pay, stock options, hospitalization insurance, medical insurance, life insurance, cafeteria benefits, dependent care reimbursements, prepaid legal benefits, scholarships or tuition reimbursements, maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is obligated to contribute thereunder for current or former employees the Company and its Subsidiaries (the "Employee Benefit Plans"), and (ii) all "employee pension plans", as defined in Section 3(2) of ERISA, maintained or sponsored by the Company or any trade or business (whether or not incorporated) which is or since the effective date of the reorganization contemplated by the Modified Third Amended Joint Plan of Reorganization dated as of April 7, 2004 (the "Plan Effective Date") has been under control or treated as a single employer with the Company under Section 414(b), (c), (m), or (o) of the Contributor Disclosure Schedule sets forth a true and complete list of each Code (an "ERISA Affiliate") or to which the Company Benefit Planor any ERISA Affiliate has contributed or has since the Plan Effective Date been obligated to contribute thereunder (the "Pension Plans").
(b) The Company has previously provided to Local Insight true True, correct and complete copies ofof the following documents, with respect to each of the Employee Benefit Plans and Pension Plans, have been made available to Parent, to the extent applicable: (i) each written Company Benefit Planall plans and related trust documents, and amendments thereto; (ii) Forms 5500 filed for the actuarial report for each Company Benefit Plan (if applicable) for each of the last three most recent plan years; (iii) the most recent IRS determination letter from the IRS (if applicable) for each Company Benefit Planletter; (iv) the current most recent summary plan description of each Company Benefit Plan that is subject to ERISAdescriptions, annual reports and material modifications; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such planmost recent actuarial report, if any; and (vi) a summary written descriptions of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted non-written agreements relating to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Employee Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.13(a) of the Contributor Disclosure Schedule sets forth a true and complete list of lists each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined "employee benefit plan” (," as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(403(3) of ERISA, whether or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in fullsubject to ERISA, and no condition exists that presents a risk to the Companyeach other benefit plan, the Company Subsidiaries policy, agreement or any other Company ERISA Affiliate of incurring a liability thereunder; arrangement (v) none of the Companyincluding, without limitation, any Company Subsidiary orcollective bargaining agreement) that is, with respect to the Knowledge of the ContributorsSeller's own employees, any other Person(i) maintained, including any fiduciaryadministered, has engaged in a transaction contributed to or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid contributed to by the Company Seller, or any entity that, together with the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the CompanySeller, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being would be treated as a single employer under Section 414 of the Code with (an "ERISA Affiliate") or to which the Seller or any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes ERISA Affiliate is a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunderparty; and (xiii) covers any employee or former employee of the Company Seller or any of its ERISA Affiliates who provides or has provided services to or in connection with the Business (the "Business Employees"). Each such plan, policy, agreement or arrangement is referred to herein as an "Employee Plan."
(b) Seller has delivered to NMHC and the Company Subsidiaries havePurchaser true, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company correct and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) complete copies of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will following documents with respect to each Employee Plan (either alone or in conjunction with any other eventwhere applicable): (i) result in each contract, plan document, policy statement, summary plan description and other written material governing or describing the Company Employee Plan and/or any related funding arrangements (including, without limitation, any related trust agreement or any insurance company contract) or, if there are no such written materials, a summary description of the Company Subsidiaries being liable for Employee Plan, and (ii) where applicable, (a) the last annual report (5500 series) filed with the Internal Revenue Service or the Department of Labor; (b) the most recent balance sheet and financial statement; (c) the most recent actuarial report or valuation statement; and (d) the most recent determination letter issued by the Internal Revenue Service, as well as any payment other determination letter, private letter ruling, opinion letter or benefit prohibited transaction exemption issued by the Internal Revenue Service or the Department of Labor since inception and any application therefor which is currently pending.
(including non-deductible remuneration (as described in Section 162(mc) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (The Seller has no funded employee pension plans within the meaning of Section 280G of the Code3(2), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (National Medical Health Card Systems Inc)
Employee Plans. (a) Schedule 5.10(a) lists all Benefit Plans. Neither the Representing Party nor any entity aggregated therewith under Code Section 3.12(a414(b) or 414(c) has had an "obligation to contribute" (as defined in ERISA Section 4212) to a "multiemployer plan" (as defined in ERISA Sections 4001(a)(3) and 3(37)(A)) ("Multiemployer Plan"). Representing Party has not incurred and is reasonably expected not to incur prior to the Closing Date, any liability under Title I or Title IV of ERISA or under Code Section 412 other than routine funding obligations and routine claims for benefits. Except as set forth on Schedule 5.10(a), all liabilities arising out of or related to Benefit Plans and ERISA Plans of Representing Party and of its affiliates in the same controlled group of corporations or who are under common control with the Representing Party (within the meaning of Section 414 of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit PlanCode) (an "ERISA Affiliate") are reflected in its financial statements in accordance with GAAP.
(b) The Company has previously provided to Local Insight true True, correct and complete copies of: of all written Benefit Plans, as currently in effect (ior as otherwise requested by Purchasing Party), listed on Schedule 5.10(a) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if and all trust agreements or other funding arrangements, including insurance contracts, all amendments thereto and, where applicable) for each of the last three years; (iii) , with respect to any such plans or plan amendments, the most recent determination letters issued by the IRS, any private letter from rulings issued by the IRS (if applicable) with respect to any such plan, the annual reports or returns, audited or unaudited financial statements, actuarial valuations, and summary annual reports for each Company Benefit Plan; (iv) the current most recent three plan years, the most recent summary plan description descriptions and any summary of each Company material modifications, summary of material reduction or notice under ERISA Section 204(h) thereto have been provided or made available to the Purchasing Party.
(c) Except as listed on Schedule 5.10(c), all the Benefit Plan that is subject to ERISA; (v) a copy of Plans and the description of each Company Benefit Plan not related trusts subject to ERISA that is currently provided to participants comply with and have been administered in such plan; (vi) a summary material compliance with, the provisions of ERISA, all provisions of the material terms of each unwritten Company Benefit Plan; Code relating to qualification and (viitax exemption under Code Section 401(a) the annual report for each Company Benefit Plan (if applicableand 501(a) for each of the last three years.
(i) or otherwise applicable to secure intended tax consequences, and all collective bargaining agreements. Except as set forth listed on Schedule 5.10(c), all material governmental approvals for the Benefit Plans have been obtained, timely determination letters have been obtained or sought on a timely basis on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including qualification of any ERISA and the Code; (ii) each Company Benefit Plan Plans intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code has received and on the tax exemption of related trusts, the failure of which to obtain or seek would have a favorable determination letter from material adverse effect on the IRSRepresenting Party's Facility, or on the Purchasing Party, and there are no circumstances that would reasonably be expected such governmental approvals have been revoked. Neither the Representing Party nor, to adversely affect the qualified status Representing Party's Knowledge, any administrator or fiduciary of any such Company Benefit Plan, and each such Company Benefit Plan (or agent of any of the foregoing) has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted engaged in any transaction or acted or failed to the IRS act in any manner which could subject any such entity to any material liability (by indemnity or otherwise) for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none breach of the Companyany fiduciary, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for postco-retirement or post-termination medical, life insurance fiduciary or other welfare-type benefits other than duty under ERISA. Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary orset forth on Schedule 5.10(c), to the Knowledge Representing Party's knowledge, no written representation or communication with respect to any material aspect of the Contributors, any other Person, including any fiduciary, Benefit Plans has engaged in a transaction or taken or failed been made to take any action in connection with which the Company, the Company Subsidiaries employees of Representing Party or any Company of its predecessors prior to or on the Closing Date that is not in accordance with the written terms and provisions of such Benefit Plan would reasonably be expected Plans in effect immediately prior to 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; (vi) there Closing Date. There are no pending, or, to the Knowledge of the Contributors, threatened unresolved claims or anticipated claims disputes (other than routine claims for benefits), audits, investigations, proceedings) under the terms of, or suits byin connection with, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiumsand no action, contributionslegal or otherwise, distributionshas been commenced, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date Representing Party's Knowledge, with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsclaim.
(d) Except All annual reports or returns, audited or unaudited financial statements, actuarial valuations, summary annual reports and summary plan descriptions issued with respect to the Benefit Plans are correct, complete and accurate in all material respects.
(e) Since January 1, 1996, no "party in interest" (as described defined in Section 3.12(d3(14) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either alone ERISA) or in conjunction with any other event): (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration "disqualified person" (as described defined in Section 162(m4975(e)(2) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” any ERISA Plan has engaged in any "prohibited transaction" (within the meaning of Section 280G 4975(c) of the CodeCode or Section 406 of ERISA) that could have a material adverse effect on Representing Party.
(f) No liability exists, and no event, to the Representing Party's Knowledge, that could result in a liability has occurred, with respect to any Benefit Plan that individually or in the aggregate could have a material adverse effect on the Facility or the Assets Transferred to Purchasing Party.
(g) Except as set forth on Schedule 5.10(g), tax gross-upRepresenting Party has not maintained, forgiveness and does not currently maintain, a Benefit Plan providing welfare benefits (as defined in ERISA Section 3(l)) to employees after retirement or other separation of indebtedness service except to the extent required under Part 6 of Title I of ERISA and Code Section 498OB(f).
(h) Except as set forth on Schedule 5.10(h), the consummation of the Transaction will not entitle any current or otherwise) becoming due former employee of the Representing Party to any Person from the Company severance pay or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of similar payment, and will not accelerate the time of payment or vesting ofvesting, or increase the amount, of compensation due any requirement such employee or former employee.
(i) All Benefit Plans subject to fund Section 4980B of the Code or securePart 6 of Title I of ERISA, or both, have been maintained in material compliance with the requirements of such laws and any amounts regulations (proposed or benefits or result in any breach of or default under any Company Benefit Planotherwise) issued thereunder.
Appears in 1 contract
Samples: Asset Exchange Agreement (Childrens Comprehensive Services Inc)
Employee Plans. (a) Section 3.12(aSchedule 4.10(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Employee Benefit Plan, and, except as set forth therein, no Company has ever created, maintained, offered or incurred any obligation under any other Employee Benefit Plan.
(b) The Each Company has previously provided delivered the following documents to Local Insight true and complete copies ofPurchaser with respect to each of its Employee Benefit Plan: (i) each written Company true, correct and complete copies of all documents embodying such Employee Benefit Plan; , including all amendments thereto, and all related trust documents, (ii) the actuarial report for each Company a written description of any Employee Benefit Plan (if applicable) for each of the last three years; that is not set forth in a written document, (iii) the most recent summary plan description together with the summary or summaries of material modifications thereto, if any, (iv) all IRS or DOL determination, opinion, notification and advisory letters, (v) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, (vi) all material correspondence to or from any Governmental Entity received in the last three (3) years, (vii) all discrimination tests for the most recent three (3) plan years (if any), and (viii) all material written agreements and contracts currently in effect, including administrative service agreements, group annuity contracts, and group insurance contracts.
(c) Each Employee Benefit Plan has been maintained and administered in all respects in material compliance with its terms and with the requirements prescribed by Applicable Law, including the timely and accurate filing of all reports and returns. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Employee Benefit Plans have been timely made or accrued. Each Employee Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is so qualified and has obtained a currently effective favorable determination letter notification, advisory or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS (if applicable) covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for each Company which the IRS will currently issue such a letter, and no amendment to such Employee Benefit Plan; (iv) Plan has been adopted since the current summary plan description date of each Company such letter covering such Employee Benefit Plan that is subject would adversely affect such favorable determination. The most recent determination notification, advisory or opinion letter for each such Employee Benefit Plan intended to ERISA; (vqualify under Section 501(a) a copy of the description Code has not been revoked, and, to Stephan’s Knowledge, no fact or event exists that could reasonably be expected to result in the revocation of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsqualified status.
(id) Except as set forth on Schedule 4.10(d), no plan currently or ever in the Contributor Disclosure Schedule, each Company Benefit Plan has been past maintained, funded and administered sponsored, contributed to or required to be contributed to by any Company or its current or former ERISA Affiliates is or ever in compliance in all material respects with its terms and applicable Lawthe past was (i) a Multiemployer Plan, including ERISA and the Code; (ii) each a plan described in Section 413 of the Code, (iii) a plan subject to Title IV of ERISA, (iv) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code.
(e) No Company Benefit Plan intended is subject to be any liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA. REV-US has materially complied with all applicable health care continuation requirements under COBRA. No “qualifiedProhibited Transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Employee Benefit Plan.
(f) Except as set forth on Schedule 4.10(f), no Employee Benefit Plan of REV-US provides, or reflects or represents any liability to provide, benefits (including death or medical benefits), whether or not insured, with respect to any former or current employee, or any spouse or dependent of any such employee, beyond the employee’s retirement or other termination of employment with any Company other than (i) coverage mandated by COBRA, (ii) retirement or death benefits under any plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRSCode, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation disability benefits that have been fully provided for by insurance under (or with respect to) (A) any an Employee Benefit Plan that constitutes an “defined employee welfare benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 (3)(1) of ERISA ERISA, or (iv) benefits in the nature of severance pay with respect to one or more of the employment contracts set forth on Schedule 4.10(f).
(g) There is no contract, plan or arrangement covering any officer, employee or former officer or employee of REV-US that, individually or collectively, could give rise to the payment as a result of the transactions contemplated by this Agreement of any amount that would not be deductible by such Company by reason of Section 413(c) 280G of the Code; (iv) no liability under Title IV . For purposes of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Companyforegoing sentence, the Company Subsidiaries term “payment” shall include any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, obligation to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for fund benefits. Except as set forth on Schedule 4.10(g), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will (either alone or in conjunction together with any other event): event which, standing alone, would not by itself trigger such entitlement or acceleration) will not (i) result entitle any Person to any payment, forgiveness of indebtedness, vesting, distribution, or increase in benefits under or with respect to any Employee Benefit Plan, (ii) otherwise trigger any acceleration (of vesting or payment of benefits or otherwise) under or with respect to any Employee Benefit Plan, or (iii) trigger any obligation to fund any Employee Benefit Plan.
(h) Except as set forth on Schedule 4.10(h), no Proceeding (excluding claims for benefits incurred in the Company ordinary course) has been brought or is pending or threatened against or with respect to any Employee Benefit Plan or the assets or any fiduciary thereof (in that Person’s capacity as a fiduciary of such Employee Benefit Plan). There are no Proceedings pending or threatened by the Company Subsidiaries being liable for IRS, DOL, or other Governmental Entity with respect to any payment or benefit Employee Benefit Plan.
(including non-deductible remuneration i) With respect to each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as described in defined for purposes of Section 162(m409A(d)(1) of the Code) severance), retentionsuch plan has been maintained and operated in compliance with Section 409A of the Code and the applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any tax, stay-putinterest or penalty thereunder. Except as set forth on Schedule 4.10(i), change no Securities or Equity Interests in any Company are subject to a substantial risk of control, unemployment compensation, “excess parachute payment” (forfeiture within the meaning of Section 280G 83 of the CodeCode with respect to which a valid election under Section 83(b) of the Code has not been made.
(j) Except as set forth on Schedule 4.10(j), tax gross-up, forgiveness of indebtedness or otherwise) becoming due all payments to any Person from funds and schemes for the Company or any benefit of the employees of REV-India as mandated under Applicable Indian Law have been made by REV-India, including any payments made towards employees’ state insurance, employees’ provident fund and any other pension scheme instituted or mandated for its employees.
(k) Each Company Subsidiaries under any Company has, and after Closing will have, all power and authority necessary to amend or terminate its participation in each Employee Benefit Plan not mandated to be provided under Applicable Law without incurring any penalty or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result liability when done in any acceleration compliance with the requirements of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit PlanApplicable Law.
Appears in 1 contract
Employee Plans. All employee benefit, welfare, bonus, deferred compensation, pension, profit sharing, stock option, employee stock ownership, consulting, severance, or fringe benefit plans, formal or informal, written or oral and all trust agreements related thereto, relating to any present or former directors, officers or employees of Crestar or the Crestar Subsidiaries (a"Crestar Employee Plans") Section 3.12(a) of are listed in the Contributor Crestar Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Letter. Except as set forth on in the Contributor Crestar Disclosure ScheduleLetter, each Company Benefit Plan has all of the Crestar Employee Plans have been maintained, funded operated, and administered in all material respects in compliance with their terms and currently comply, and have at all relevant times complied, in all material respects with its terms and the applicable Lawrequirements of ERISA, including ERISA and the Code; , and any other applicable laws. Except as set forth in the Crestar Disclosure Letter, with respect to each Crestar Employee Plan which is a pension plan (iias defined in Section 3(2) of ERISA): (a) each Company Benefit Plan pension plan as amended (and any trust relating thereto) intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code either has received been determined by the IRS to be so qualified or is the subject of a favorable pending application for such determination letter that was timely filed, (b) there is no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, and no waiver of the minimum funding standards of such sections has been requested from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of (c) neither Crestar nor any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company SubsidiaryCrestar Subsidiaries has provided, or is required to provide, security to any other Company ERISA Affiliate maintainspension plan pursuant to Section 401(a)(29) of the Code, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect tod) (A) any “the fair market value of the assets of each defined benefit plan” plan (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) exceeds the value of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” "benefit liabilities" within the meaning of Section 210 4001(a)(16) of ERISA under such defined benefit plan as of the end of the most recent plan year thereof ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such defined benefit plan as of the date hereof, (e) no reportable event described in Section 4043 of ERISA has occurred for which the 30 day reporting requirement has not been waived has occurred, (f) no defined benefit plan has been terminated, nor has the PBGC instituted proceedings to terminate a defined benefit plan or to appoint a trustee or administrator of a defined benefit plan, and no circumstances exist that constitute grounds under Section 4042(a)(2) of ERISA entitling the PBGC to institute any such proceedings and (g) no pension 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; (iv) no . Neither Crestar nor any Crestar Subsidiary has incurred any liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date PBGC with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single any "single-employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (plan" within the meaning of Section 280G 4001(a)(15) of ERISA currently or formerly maintained by any entity considered one employer with it under Section 4001 of ERISA or Section 414 of the Code), tax gross-up, forgiveness except for premiums all of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.which have
Appears in 1 contract
Employee Plans. (a) Section 3.12(aSchedule 4.10(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Employee Benefit Plan.
(b) The Company has previously provided made available to Local Insight true Parent prior to the date hereof the following documents with respect to each Employee Benefit Plan: (1) correct and complete copies of: (i) each written Company of all documents embodying such Employee Benefit Plan; , including (iiwithout limitation) all amendments thereto, and all related trust documents, (2) a written description of any such Employee Benefit Plan that is not set forth in a written document, (3) the most recent summary plan description together with the summary or summaries of material modifications thereto, if any, (4) the three most recent annual actuarial report for each Company Benefit Plan valuations, if any, (5) all IRS or DOL determination, opinion, notification and advisory letters, (6) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if applicableany, (7) for each of all material correspondence to or from any Governmental Authority received in the last three years; , (iii) 8) all discrimination tests for the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary three plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; years, and (vii9) the annual report for each Company Benefit Plan all material written agreements and contracts currently in effect, including (if applicablewithout limitation) for each of the last three yearsadministrative service agreements, group annuity contracts, and group insurance contracts.
(ic) Except as set forth on the Contributor Disclosure Schedule, each Company Each Employee Benefit Plan has been maintained, funded maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including (without limitation) ERISA and the Code, which are applicable to such Employee Benefit Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Employee Benefit Plans have been timely made or accrued. Each Employee Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code (i) to the Knowledge of the Company, is so qualified and (ii) has obtained a currently effective favorable determination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Employee Benefit Plan has been adopted since the date of such letter covering such Benefit Plan that would adversely affect such favorable determination. The most recent determination notification, advisory and/or opinion letter for each such Employee Benefit Plan has not been revoked, and no fact or event exists that would reasonably be expected to result in the revocation of such qualified status.
(d) No plan currently or ever in the past maintained, sponsored, contributed to or required to be contributed to by the Company, any of its Subsidiaries, or any of their respective current or former ERISA Affiliates is or ever in the past was (1) a Multiemployer Plan, (2) a plan described in Section 413 of the Code, (3) a plan subject to Title IV of ERISA, (4) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (5) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code.
(e) Neither the Company nor any of its Subsidiaries is subject to any material liability, penalty or tax under Sections 4975 through 4980B of the Code or Title I of ERISA. The Company and its Subsidiaries have complied in all material respects with its terms all applicable health care continuation requirements in Section 4980B of the Code and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be in ERISA. No “qualifiedProhibited Transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Employee Benefit Plan.
(f) No Employee Benefit Plan provides, or reflects or represents any liability to provide, benefits (including, without limitation, death or medical benefits), whether or not insured, with respect to any former or current employee, or any spouse or dependent of any such employee, beyond the employee’s retirement or other termination of employment with the Company and its Subsidiaries other than (1) coverage mandated by Part 6 of Title I of ERISA or Section 4980B of the Code, (2) retirement or death benefits under any plan intended to be qualified under Section 401(a) of the Code has received Code, (3) disability benefits that have been fully provided for by insurance under a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as that constitutes an “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined employee welfare benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c(3)(1) of ERISA, or (4) benefits in the Code; (iv) no liability under Title IV nature of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk severance pay with respect to the Company, the Company Subsidiaries one or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none more of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged employment contracts set forth on Schedule 4.10(f).
(g) Except as set forth in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefitsSchedule 4.10(g), auditsthere is no contract, investigations, proceedings, plan or suits by, on behalf of arrangement covering any employee or against any former employee of the Company Benefit Plans; (vii) all paymentsor any of its Subsidiaries that, premiumsindividually or collectively, contributions, distributions, reimbursements or other amounts required could give rise to the payment as a result of the transactions contemplated by this Agreement of any amount that would not be paid deductible by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability such Subsidiary by reason of being treated as a single employer under Section 414 280G of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for Code. For purposes of Section 409A the foregoing sentence, the term “payment” shall include (without limitation) any payment, acceleration, forgiveness of the Code has been operated indebtedness, vesting, distribution, increase in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors benefits or agents.
(d) obligation to fund benefits. Except as described set forth in Section 3.12(d) of the Contributor Disclosure ScheduleSchedule 4.10(g), neither the execution and delivery of this Agreement nor and the consummation of the transactions contemplated by this Agreement will (either alone or in conjunction together with any other event): event which, standing alone, would not by itself trigger such entitlement or acceleration) will not (1) entitle any Person to any payment, forgiveness of indebtedness, vesting, distribution, or increase in benefits under or with respect to any Employee Benefit Plan, (2) otherwise trigger any acceleration (of vesting or payment of benefits or otherwise) under or with respect to any Employee Benefit Plan, or (3) trigger any obligation to fund any Employee Benefit Plan.
(h) No action, suit or claim (excluding claims for benefits incurred in the ordinary course) has been brought or is pending or, to the Company’s Knowledge, threatened against or with respect to any Employee Benefit Plan or the assets or any fiduciary thereof (in that Person’s capacity as a fiduciary of such Employee Benefit Plan). Except as set forth in Schedule 4.10(h), there are no audits, inquiries or proceedings pending or, to the Company’s Knowledge, threatened by the IRS, DOL, or other Governmental Entity with respect to any Employee Benefit Plan.
(i) result With respect to each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code), such plan has been maintained and operated in material compliance with Section 409A of the Code and the applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any tax, interest or penalty thereunder. No stock option granted by the Company or any of the Company its Subsidiaries being liable for (whether currently outstanding or previously exercised) is, has been or would be, as applicable, subject to any payment tax, penalty or benefit (including non-deductible remuneration (as described in interest under Section 162(m) 409A of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of Sellers and Principal Shareholders have heretofore delivered to the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true Buyer true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letter relating to each written Company Benefit member of the KMC Group's pension, profit-sharing, stock bonus or other deferred compensation arrangements, if any, listed in EXHIBIT 3.3(m) hereto for which a determination letter was obtained or for which no such letter was obtained except for any multi-employer plans sponsored by any of them (each a "Plan; " and collectively the "Plans");
(ii) the actuarial report most recent Annual Report (Form 5500 series) and accompanying schedules of each Plan currently sponsored by any of them, with respect to which the same are required, as filed pursuant to applicable law; and
(iii) all plan documents, as amended to date, summary plan descriptions and summaries of material modifications and all plan termination documentation with respect to each Plan and employee welfare plan presently or in the past sponsored by any member of the KMC Group, as well as the most recent financial statements of each of such plans, except for the multi-employer plans referred to below. With respect to each Company Benefit of such Plans as to which an Annual Report (Form 5500 series) is required to be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material change has occurred with respect to the matters covered by the last Annual Report since the date thereof. Sellers and Principal Shareholders do not know, nor have any reasonable grounds to know, of any "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, which has ever been engaged in by any shareholder, or any member of the KMC Group, or by any Plan sponsored by any member of the KMC Group, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on prohibited transactions imposed by Section 4975 of the Code. There are no actions, suits or claims pending or, to the best of Sellers and Principal Shareholders' knowledge after due inquiry, threatened, against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any of said trusts have incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA or Section 412(a) of the Code (if applicable) for whether or not waived), since the date of ERISA. The terms and operation of each of the last three years; (iii) Plans have complied to the most recent determination letter from extent required with the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning provisions of Section 401(a) of the Code has received a favorable determination letter from the IRSand with ERISA, and there are no circumstances that would reasonably be expected to adversely affect all reports and notices required by ERISA or the qualified status of any such Company Benefit Plan, Code have been duly filed or given. Sellers and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted Principal Shareholders shall deliver to the IRS for Buyer a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none list of all of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) members of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under KMC Group's Plans subject to Title IV of ERISA and all trusts created thereunder which have been terminated, and all "reportable events," as that term is defined in Section 4043 of ERISA. Except as may be specified in EXHIBIT 3.3(m) hereto, none of such Plans and no such trust has been incurred terminated, nor has any such "reportable event" occurred with respect to any such Plans since the effective date of ERISA. The present value, on a plan termination basis, of all benefits accrued under each Plan sponsored or contributed to by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none member of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be KMC Group and subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) Title IV of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pendingdid not, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect most recent valuation date, exceed the fair market value of the assets of such Plan as of such date. No members of the KMC Group have ever been sponsors of, and/or a contributing employer to, a multi-employer pension plan subject to each Company Benefit Plan the provisions of Section 4201, ET SEQ., of ERISA; or if they have, they have been made or properly accrued; (viii) the Companynever incurred any withdrawal liability thereunder, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or nor will they incur any such liability by reason of being treated as a single employer under Section 414 result of the Code with consummation of any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement agreement; or if they will, at or prior to the Closing Date, they will (either alone pay or otherwise satisfy such liability in conjunction full and/or establish an escrow fund or secure a bond in an appropriate amount with respect to the same with an escrow agent and/or a bonding company reasonably satisfactory to the Buyer and in a manner agreeable to applicable law. No member of the KMC Group has ever been a sponsor of, or a contributing employer to, a single employer pension plan subject to the provisions of Section 4041, ET SEQ., of ERISA; nor has it ever incurred any other event): (i) liability thereunder or under Section 4062, ET SEQ., of ERISA, nor will it incur any such liability as a result in of the Company or consummation of any of the Company Subsidiaries being liable for any payment transactions contemplated by this agreement; or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or if any of them will, at or prior to the Company Subsidiaries under any Company Benefit Plan Closing Date, they will pay or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result satisfy such liability in any acceleration of the time of payment or vesting of, or any requirement to full and/or establish an escrow fund or secure, any amounts or benefits or result secure a bond with respect to the same as provided in any breach of or default under any Company Benefit Planthe preceding sentence.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a3.18(a) of the Contributor Company Disclosure Schedule sets forth contains a true correct and complete list of each material Company Benefit Plan subject to the laws of the United States. No later than thirty (30) days following the date of this Agreement, the Company shall provide or make available to Parent a complete list of each material Foreign Company Benefit Plan.
(b) The Company has previously provided or made available to Local Insight Parent with respect to each and every material Company Benefit Plan subject to the laws of the United States a true and complete copies of: copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the extent applicable, (i) each written the most recent determination letter received by the Company or any of its Subsidiaries from the IRS regarding the tax-qualified status of such Company Benefit Plan; (ii) the actuarial report most recent financial statements for each such Company Benefit Plan (if applicable) for each of the last three yearsPlan; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Planactuarial valuation report; (iv) the current summary plan description and any summaries of material modifications; and (v) Form 5500 Annual Returns/Reports, together with all schedules thereto, for the most recent plan year. No later than thirty (30) days following the date of this Agreement, the Company shall provide or make available to Parent all plan documents with respect to each material Foreign Company Benefit Plan or a written summary of such plan.
(c) With respect to each Company Benefit Plan that is a “single-employer plan” (within the meaning of Section 3(41) of ERISA) and is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) the minimum funding standards (within the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA) are satisfied, whether or not waived, and no application for a waiver of the minimum funding standard has been submitted to the IRS; (ii) no “reportable event” (within the meaning of Section 4043(c) of ERISA) for which the 30-day notice requirement has not been waived has occurred; (iii) no liability other than for premiums to the Pension Benefit Guarantee Corporation (“PBGC”) under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any of its ERISA Affiliates, and all premiums to the PBGC have been timely paid in full; (iv) the PBGC has not instituted proceedings to terminate any such plan, and, to the Knowledge of the Company, 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 administer, any such plan; (v) a copy no such plan is currently, or is reasonably expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such planCode); (vi) a summary the fair market value of the material terms assets and liabilities of each unwritten such plan has been reported in accordance with GAAP by the Company Benefit Planon the most recent financial statements of the Company; and (vii) neither the annual report for Company nor its Subsidiaries have engaged in a “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such event. None of the Company or any of its ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to a “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer 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. None of the Company or any of its ERISA Affiliates has withdrawn at any time within the preceding six years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that would reasonably be expected to result in any such liability to the Company or any of its Subsidiaries.
(d) With respect to each Company Benefit Plan (if applicablethat is intended to qualify under Section 401(a) for each of the last three yearsCode, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, or such plan has been adopted under a prototype plan or volume submitter plan approved by the IRS, and nothing has occurred with respect to the operation of any such plan which 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.
(ie) Except as set forth on There are no pending or, to the Contributor Disclosure ScheduleKnowledge of the Company, each threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan subject to the laws of the United States or against any fiduciary of any Company Benefit Plan subject to the laws of the United States with respect to the operation of such plan (other than routine benefits claims). Except as would not reasonably be expected to result in a Company Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened actions, claims or lawsuits against or relating to any Foreign Company Benefit Plan or against any fiduciary of any Foreign Company Benefit Plan with respect to the operation of such plan (other than routine benefits claims).
(f) Each Company Benefit Plan subject to the laws of the United States has been maintained, funded established and administered in all material respects in accordance with its terms, and in compliance in all material respects with its terms the applicable provisions of ERISA, the Code and other applicable Lawlaws, including and all contributions required to have been made under any of the Company Benefit Plans subject to the laws of the United States to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Company’s financial statements.
(g) None of the Company Benefit Plans subject to the laws of the United States provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable law or at the expense of the participant or the participant’s beneficiary. There has been no material violation of the “continuation coverage requirement” of “group health plans” as set forth in Section 4980B of the Code and the Code; (ii) each Part 6 of Subtitle B of Title I of ERISA with respect to any Company Benefit Plan intended to be “qualified” within the meaning of Section 401(awhich such continuation coverage requirements apply.
(h) of the Code has received a favorable determination letter from the IRSExcept as provided in this Agreement (and, and there are no circumstances that would reasonably be expected with respect to adversely affect the qualified status of any such Company Benefit Plan, and each such Foreign Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none or employees of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) outside of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary orUnited States only, to the Knowledge of the ContributorsCompany), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any other Personpayment becoming due, including or increase the amount of any fiduciarycompensation or benefits due, has engaged in a transaction to any current or taken or failed to take any action in connection with which the Company, former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan would reasonably be expected to be subject to either Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits; or (iv) trigger any payment or funding (through a material civil penalty assessed pursuant to Section 409 grantor trust or 502(iotherwise) of ERISA any compensation or a material Tax imposed pursuant to benefits under any Company Benefit Plan.
(i) No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4975 409A or 4976 4999 of the Code; .
(vij) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, Except as set forth on behalf of or against any Section 3.18(j) of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby or thereby will (either alone or in conjunction combination with any other another event): (i) result in the Company payment of any amount that would, individually or in combination with any of the Company Subsidiaries being liable for any payment or benefit (including non-other such payment, not be deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning a result of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise.
(k) becoming due Except as would not reasonably be expected to any Person from result in a material liability to the Company or its Subsidiaries, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in documentary compliance with, and has been administered (i) in good faith compliance with Section 409A of the Code for the period beginning October 1, 2004 through December 31, 2008, and (ii) in compliance with Section 409A of the Code since January 1, 2009.
(l) With respect to any Company RSU Award, (i) each grant of a Company RSU Award was duly authorized no later than the date on which the grant of such Company RSU Award was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Board of Directors of the Company, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the stockholders of the Company Subsidiaries under any by the necessary number of votes or written consents, and the award agreement governing such grant, if any, was duly executed and delivered by each party thereto within a reasonable time following the Grant Date, and (ii) each such grant was made in accordance with the terms of the applicable Company Benefit Plan (including the applicable Company Stock Plan), the Exchange Act and all other applicable law, including the rules of NYSE.
(m) Except as would not reasonably be expected to result in a material liability to the Company or otherwise; its Subsidiaries, all Company Benefit Plans subject to the laws of any jurisdiction outside of the United States (each a “Foreign Company Benefit Plan”) (i) have been maintained in accordance with all applicable requirements, (ii) increase any amounts or benefits otherwise payable or due that are intended to any Person under any Company Benefit Plan or otherwise; or qualify for special Tax treatment, meet all requirements for such treatment, and (iii) result in any acceleration that are intended to be funded and/or book-reserved, are fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions
(n) As of October 14, 2016, there are (i) 302,877 shares of Company Common Stock underlying outstanding and unvested Company RSU Awards granted (A) prior to April 1, 2014 and (B) to non-employee members of the time Board of payment Directors of the Company, in each case, all of which Company RSU Awards are service-based, (ii) 3,463,845 shares of Company Common Stock underlying outstanding and unvested service-based Company RSU Awards granted on or vesting ofafter April 1, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under 2014 (other than any Company Benefit PlanRSU Award granted to a non-employee member of the Board of Directors of the Company), (iii) 1,577,767 shares of Company Common Stock underlying outstanding and unvested performance-based Company RSU Awards granted on or after April 1, 2014, assuming target performance (or actual performance to the extent the performance criteria has already been satisfied), and (iv) 2,666,136 shares of Company Common Stock underlying unvested performance-based Company RSU Awards granted on or after April 1, 2014, assuming maximum performance.
Appears in 1 contract
Samples: Merger Agreement (Centurylink, Inc)
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth Sellers have provided Buyer with a true correct and complete list of their employees as of December 31, 1998, including their names and base salary or hourly wage rate. Sellers shall update such list as of a date not more than 10 days prior to the Closing Date, which will include each Company new employee's date of hire on record with Seller and provide Buyer with such updated list prior to the Closing Date.
(b) Schedule 6.10(b) sets forth all "employee benefit plans," as ---------------- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and all other employee benefit plans or other benefit arrangements, including all bonus and other incentive compensation, deferred compensation, disability, severance, retention, salary continuation, stock and stock-related award, stock option, stock purchase, collective bargaining or workers' compensation agreements, plans, policies and arrangements which Primestar or any of its Subsidiaries maintains, is a party to, contributed to or has any obligation to or liability for in respect of current or former employees and directors (each, a "Benefit Plan" and collectively, the "Benefit Plans"). None of the Benefit Plans is subject to Title IV of ERISA.
(c) True, correct and complete copies of the most recent summary plan description for each Benefit Plan have been delivered to Buyer for review prior to the date hereof.
(d) Except as would not, individually or in the aggregate, have a Material Adverse Effect on Primestar, (i) all payments required to be made by or under any Benefit Plan, any related trusts, insurance policies or ancillary agreements, or any collective bargaining agreement have been timely made, (ii) Primestar and its Subsidiaries have performed all obligations required to be performed by them under any Benefit Plan, (iii) the Benefit Plans comply in all respects and have been maintained in compliance with their terms and the requirements of ERISA, the Code and other applicable laws, and (iv) there are no actions, suits, arbitrations or claims (other than routine claims for benefits) pending or, to the Knowledge of either Seller, threatened with respect to any Benefit Plan.
(be) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Each Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan related trust which are intended to be “"qualified” " within the meaning of Section Sections 401(a) and 501(a) of the Code has received a favorable determination letter from Code, respectively, have been determined by the IRSInternal Revenue Service to be so "qualified" under such Sections, as amended by the Tax Reform Act of 1986, and there are no circumstances that neither Seller has Knowledge of any fact which would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsits related trust.
(df) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone i) increase any benefits otherwise payable under any Benefit Plan, or in conjunction with any other event): (iii) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting ofof any such benefits. Except as set forth on Schedule 6.10(f), or any requirement to fund or secure, any amounts or benefits or neither the execution and delivery of this ---------------- Agreement nor the consummation of the transactions contemplated hereby will result in any breach payment becoming due, or increase the compensation due, to any current or former employee or director of Primestar or default under any Company Benefit Planits Subsidiaries.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth Sellers have provided Buyer with a true correct and complete list of their employees as of December 31, 1998, including their names and base salary or hourly wage rate. Sellers shall update such list as of a date not more than 10 days prior to the Closing Date, which will include each Company new employee's date of hire on record with Seller and provide Buyer with such updated list prior to the Closing Date.
(b) Schedule 6.10(b) sets forth all "employee benefit plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and all other employee benefit plans or other benefit arrangements, including all bonus and other incentive compensation, deferred compensation, disability, severance, retention, salary continuation, stock and stock-related award, stock option, stock purchase, collective bargaining or workers' compensation agreements, plans, policies and arrangements which Primestar or any of its Subsidiaries maintains, is a party to, contributed to or has any obligation to or liability for in respect of current or former employees and directors (each, a "Benefit Plan" and collectively, the "Benefit Plans"). None of the Benefit Plans is subject to Title IV of ERISA.
(c) True, correct and complete copies of the most recent summary plan description for each Benefit Plan have been delivered to Buyer for review prior to the date hereof.
(d) Except as would not, individually or in the aggregate, have a Material Adverse Effect on Primestar, (i) all payments required to be made by or under any Benefit Plan, any related trusts, insurance policies or ancillary agreements, or any collective bargaining agreement have been timely made, (ii) Primestar and its Subsidiaries have performed all obligations required to be performed by them under any Benefit Plan, (iii) the Benefit Plans comply in all respects and have been maintained in compliance with their terms and the requirements of ERISA, the Code and other applicable laws, and (iv) there are no actions, suits, arbitrations or claims (other than routine claims for benefits) pending or, to the Knowledge of either Seller, threatened with respect to any Benefit Plan.
(be) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Each Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan related trust which are intended to be “"qualified” " within the meaning of Section Sections 401(a) and 501(a) of the Code has received a favorable determination letter from Code, respectively, have been determined by the IRSInternal Revenue Service to be so "qualified" under such Sections, as amended by the Tax Reform Act of 1986, and there are no circumstances that neither Seller has Knowledge of any fact which would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan and its related trust.
(f) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) increase any benefits otherwise payable under any Benefit Plan, and each such Company Benefit Plan has been timely amended for or (ii) result in the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none acceleration of the Company, time of payment or vesting of any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for such benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) . Except as described in Section 3.12(d) of the Contributor Disclosure Scheduleset forth on Schedule 6.10(f), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other event): (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting ofbecoming due, or increase the compensation due, to any requirement to fund current or secure, any amounts former employee or benefits director of Primestar or result in any breach of or default under any Company Benefit Planits Subsidiaries.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) Target has heretofore delivered to the Rock of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true Ages Group true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letter relating to each written Company Benefit of Target's and each Joint Venture Company's pension, profit-sharing, stock bonus or other deferred compensation arrangements, if any, listed in EXHIBIT 5.3(m) hereto for which a letter was obtained except for any multi-employer plans sponsored by any of them (each a "Plan; " and collectively the "Plans");
(ii) the actuarial report most recent Annual Report (Form 5500 series) and accompanying schedules of each Plan currently sponsored by any of them, with respect to which the same are required, as filed pursuant to applicable law; and
(iii) all plan documents, as amended to date, summary plan descriptions and summaries of material modifications and all plan termination documentation with respect to each Plan and employee welfare plan presently or in the past sponsored by Shareholder, Target or any of the Joint Venture Companies, as well as the most recent financial statements of each of such plans, except for the multi-employer plans referred to below. With respect to each Company Benefit of such Plans as to which an Annual Report (Form 5500 series) is required to be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material change has occurred with respect to the matters covered by the last Annual Report since the date thereof. Target does not know, nor have any reasonable grounds to know, of any "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, which has ever been engaged in by Shareholder, Target or any of the Joint Venture Companies, or by any Plan sponsored by Target, Shareholder or any such company, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on prohibited transactions imposed by Section 4975 of the Code. There are no actions, suits or claims pending or, to the best of Target's knowledge after due inquiry, threatened, against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any of said trusts have incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA or Section 412(a) of the Code (if applicable) for whether or not waived), since the Effective Time of ERISA. The terms and operation of each of the last three years; (iii) Plans have complied to the most recent determination letter from extent required with the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning provisions of Section 401(a) of the Code has received a favorable determination letter from the IRSand with ERISA, and there are no circumstances that would reasonably be expected to adversely affect all reports and notices required by ERISA or the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has Code have been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted duly filed or given. Target shall deliver to the IRS for Rock of Ages Group a determination letter on list of all of Shareholder, Target and all the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Joint Venture Companies Plans subject to Title IV of ERISA and all trusts created thereunder which have been terminated, and all "reportable events," as that term is defined in Section 4043 of ERISA. Except as may be specified in EXHIBIT 5.3(m) hereto, none of such Plans and no such trust has been incurred by a Company ERISA Affiliate that terminated, nor has not been satisfied in full, and no condition exists that presents a risk any such "reportable event" occurred with respect to any such Plans since the Company, the Company Subsidiaries or any other Company ERISA Affiliate effective date of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits byERISA. The present value, on behalf a plan termination basis, of all benefits accrued under each Plan sponsored or against contributed to by Shareholder, Target or any of the Company Benefit Plans; (vii) all paymentsJoint Venture Companies and subject to Title IV of ERISA did not, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit most recent valuation date, exceed the fair market value of the assets of such Plan have been made or properly accrued; (viii) the Companyas of such date. Shareholder, the Company Subsidiaries Target and the other Company ERISA Affiliates Joint Venture Companies have complied and are in compliance in all material respects with COBRAnever been sponsors of, and/or a contributing employer to, a multi-employer pension plan subject to the provisions of Section 4201, ET SEQ., of ERISA; (ix) the Company and the Company Subsidiaries or if they have, they have no current or potential obligation or never incurred any withdrawal liability by reason of being treated thereunder, nor will they incur any such liability as a single employer under Section 414 result of the Code with consummation of any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either alone agreement; or if they will, Target will, at or prior to the Closing Date, pay or otherwise satisfy such liability in conjunction full and/or establish an escrow fund or secure a bond in an appropriate amount with any other event): (i) result respect to the same with an escrow agent and/or a bonding company reasonably satisfactory to the Rock of Ages Group and in the Company or a manner agreeable to applicable law. Neither Shareholder, Target nor any of the Company Subsidiaries being liable for Joint Venture Companies have ever been a sponsor of, or a contributing employer to, a single employer pension plan subject to the provisions of Section 4041, ET SEQ., of ERISA; nor have they ever incurred any payment liability thereunder or benefit (including non-deductible remuneration (under Section 4062, ET SEQ., of ERISA, nor will any of them incur any such liability as described in Section 162(m) a result of the Code) severance, retention, stay-put, change consummation of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwisetransactions contemplated by this agreement; or (iii) result if any of them will, Target will, at or prior to the Closing Date, pay or otherwise satisfy such liability in any acceleration of the time of payment or vesting of, or any requirement to full and/or establish an escrow fund or secure, any amounts or benefits or result secure a bond with respect to the same as provided in any breach of or default under any Company Benefit Planthe preceding sentence.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Rock of Ages Corp)
Employee Plans. (a) Section 3.12(aSchedule 4.19(a) lists each material plan, agreement, arrangement or policy providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, change in control benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits), or other employee benefits, in each case, which is either maintained, administered, sponsored or contributed to by a Seller Party or their ERISA Affiliates for the Contributor Disclosure Schedule sets forth a true benefit of any Hired Personnel (each, individually, an “Employee Plan” and complete list of each Company Benefit Plancollectively, the “Employee Plans”).
(b) The Company With respect to each of the Employee Plans that is not a Multiemployer Plan, Seller has previously provided made available to Local Insight true and complete copies ofBuyer: (i) each written Company Benefit a true, correct and complete copy of such Employee Plan; , (ii) the actuarial report for each Company Benefit Plan most recent Annual Report (Form 5500 Series) and accompanying schedule, if applicable) for each of the last three years; any, and (iii) the most recent determination letter from the IRS (IRS, if applicable) for each Company Benefit Plan; (iv) any. Seller has also made available to Buyer the current summary plan description of and any material modifications thereto for each Company Benefit Employee Plan that is subject to ERISA; (v) not a copy Multiemployer Plan in respect of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) which there exists a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three yearsplan description.
(ic) Except as set forth on the Contributor Disclosure Schedule, Schedule 4.19(c) identifies each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Employee Plan intended to be a “qualifiedqualified plan” within the meaning of Section 401(a) of the Code (“Qualified Plans”). Each Qualified Plan has received a favorable determination letter from the IRS or is a prototype plan that has received a favorable opinion letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsrevoked.
(d) Except as described would not reasonably be expected to have a Material Adverse Effect, Seller has timely made or accrued all contributions required with respect to any Qualified Plan.
(e) Except as would not be reasonably expected to have a Material Adverse Effect, the Seller Parties and their ERISA Affiliates have performed and complied with all of their obligations under or with respect to the Employee Plans and each Employee Plan that is not a Multiemployer Plan has been operated in Section 3.12(dall material respects in accordance with its terms and in compliance with all Applicable Laws including the Code and ERISA, and to Seller’s knowledge, each Multiemployer Plan has been operated in all material respects in accordance with its terms and in compliance with all Applicable Laws including the Code and ERISA. There are no pending or, to Seller’s knowledge, threatened claims or proceedings relating to the Employee Plans that are not Multiemployer Plans, other than routine claims for benefits that have not resulted in any pending or, to Seller’s knowledge, threatened litigation. Neither the Seller Parties nor their ERISA Affiliates have engaged in a transaction with respect to any Employee Plan that, assuming the taxable period of such transaction expired as of the date hereof, would be reasonably expected to subject Seller to a tax or penalty imposed by Sections 4975 through 4980 of the Code or Sections 502(i) or 502(l) of ERISA in an amount which would have a Material Adverse Effect. There are no material audits, inquiries or proceedings pending or, to Seller’s knowledge, threatened by the Contributor Disclosure ScheduleIRS, neither the execution and delivery Department 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting ofLabor, or any requirement other Governmental Authority with respect to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Employee Plan.
Appears in 1 contract
Employee Plans. (ai) Section 3.12(aSchedule 3.18 identifies each Employee Plan which is not a ------------- Multiemployer Plan or otherwise provided for in a collective bargaining agreement referred to in Schedule 3.17. The Sellers shall, no later than ten ---- (10) business days prior to the Closing Date make available to the Purchaser copies of all Employee Plans listed on Schedule 3.18 (and, if applicable, ---- related trust agreements) and all amendments thereto together with the Contributor Disclosure three most recent annual reports (Forms 5500 including, if applicable, Schedule sets forth a true B thereto) and the most recent actuarial valuation report, if any, prepared in connection with any Employee Plan listed on Schedule 3.18. The Sellers will ---- make available to the Purchaser complete list of each Company Benefit Planage, salary, service and related data for all employees and former employees covered under the Employee Plans.
(bii) The Company Other than as set forth in Schedule 3.17, neither any Seller ---- nor Star Management nor any of their ERISA Affiliates has previously provided any obligation to Local Insight true and complete copies of: (i) each written Company Benefit contribute to a Multiemployer Plan; (ii) the actuarial report for each Company Benefit and no Employee Plan (if applicable) for each listed on Schedule 3.18 is or will be subject to Title IV of the last three years; ERISA.
(iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Each Employee Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth listed on the Contributor Disclosure Schedule, each Company Benefit Plan Schedule 3.18 has been maintained, funded established ---- and administered in compliance in all material respects in compliance with its terms and all applicable Lawlaws, including statutes, orders, rules and regulations, including, but not limited to, ERISA and the Code; (ii) each Company Benefit . Each Employee Plan listed on Schedule 3.18 that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received a favorable letter of determination letter from the IRS, Internal Revenue Service that the form of such Employee Plan meets the requirements of Section 401(a) of the Code and there are no circumstances that would reasonably be expected the form of the corresponding trust meets the requirements for exemption under Section 501(a) of the Code and to adversely affect the qualified status knowledge of any such Company Benefit PlanStar Company, and nothing has occurred since the date of each such letter that could result in the disqualification of such plans. No Star Company Benefit Plan or Seller has knowledge that any of the Multiemployer Plans to which it or any of their respective ERISA Affiliates contributes on behalf of its employees has been timely amended for established or administered in violation of any provisions of ERISA or the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company SubsidiaryCode, or the regulations promulgated thereunder.
(iv) Neither any other Star Company nor any or their ERISA Affiliate maintains, sponsors, contributes to, or Affiliates has any current or potential projected liability in respect of post-employment or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement health or post-termination medical, medical or life insurance benefits for retired, former or other welfare-type benefits current employees of the Sellers or any of their Affiliates, other than as described in may be required to avoid excise tax under Section 3.12(d) 4980B of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” Code or as defined in Section 3(40) a result of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by an obligation to contribute to a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; Multiemployer Plan.
(v) none Except as set forth in Section 3.16 and as provided for in Section 10.02(a), no employee or former employee of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries Star Companies or any Company Benefit Plan would reasonably be expected of their Affiliates will become entitled to be subject to either a material civil penalty assessed pursuant to Section 409 any bonus, retirement, severance, job security or 502(isimilar benefit or enhanced such benefit (including acceleration of vesting or exercise of an incentive award) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation result of the transactions contemplated by this Agreement will hereby.
(either alone or in conjunction with vi) No Star Company other than Star Management has any employees nor, other event): (i) result in the Company or any than as an ERISA Affiliate of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secureStar Management, any amounts obligations or benefits liabilities related to employment or result in any breach of or default under any Company Benefit Planemployee benefits.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) The Rock of the Contributor Disclosure Schedule sets forth a true Ages Group will make made available upon request for examination by Target and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true Shareholder true, correct and complete copies of: :
(i) the most recent Internal Revenue Service determination letter relating to each written Company Benefit of the Rock of Ages Group's pension, profit-sharing, stock bonus or other deferred compensation arrangements, if any, for which a letter was obtained except for any multi-employer plans sponsored by any number of the Rock of Ages Group, (each a "Plan; " and collectively the "Plans");
(ii) the actuarial report for most recent Annual Report (Form 5500 Series) and accompanying schedules of each Company Benefit Plan sponsored by the Rock of Ages Group with respect to which the same are required, as filed pursuant to applicable law; and
(if applicableiii) for all plan documents, as amended to date, summary plan descriptions and summaries of material modifications with respect to each Plan sponsored by a member of the Rock of Ages Group, as well as the most recent financial statements of each of such plans. With respect to each of such Plans as to which an Annual Report (Form 5500 series) is required to be filed, no liabilities as of the date of such Annual Report exist unless specifically referred to in the most recent such Annual Report, and no material change has occurred with respect to the matters covered by the last Annual Report since the date thereof. The Rock of Ages Group does not know, nor have any reasonable grounds to know, of any "prohibited transaction," as such term is defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and Section 4975 of the Code, which has been engaged in by any member of the Rock of Ages Group or by any Plan sponsored by any member of the Rock of Ages Group, any trust created thereunder or any trustee, administrator or other fiduciary thereof, or which would subject such Plan or any such entity, or any party dealing with such Plan or any such trust, to the sanctions imposed by ERISA or the tax on prohibited transactions imposed by Section 4975 of the Code. There are no actions, suits or claims pending or, to the best of the Rock of Ages Group's knowledge, after due inquiry, threatened against any of the Plans or any administrator or fiduciary thereof. Neither any of the Plans nor any said trust have incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA or Section 412(a) of the Code (whether or not waived), since the Effective Time of ERISA. The terms and operation of each of the last three years; (iii) Plans have complied to the most recent determination letter from extent required with the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning provisions of Section 401(a) of the Code has received a favorable determination letter from the IRSand with ERISA, and there are no circumstances that would reasonably be expected to adversely affect all reports and notices required by ERISA or the qualified status Code have been duly filed or given. The Rock of any such Company Benefit Plan, Ages Group shall make available for examination by Target and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for Shareholder a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none list of all of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) Rock of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Ages Group's Plans subject to Title IV of ERISA has and all trusts created thereunder which have been incurred by a Company ERISA Affiliate that has not been satisfied in fullterminated, and no condition exists all "reportable events," as that presents a risk to the Companyterm is defined in Section 4043 of ERISA, the Company Subsidiaries or any other Company ERISA Affiliate if any. Except as may be specified in Rock of incurring a liability thereunder; (v) Ages Group Disclosure Schedule hereto, none of the CompanyRock of Ages Group's Plans and no such trust has been terminated, nor has any Company Subsidiary orsuch "reportable event" occurred with respect to any such as a share of common stock of Acquiror. Plans since the effective date of ERISA. The present value, on a plan termination basis, of all benefits accrued under each Plan sponsored or contributed to the Knowledge by a member of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be Rock of Ages Group and subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) Title IV of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pendingdid not, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) most recent valuation date, exceed the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 fair market value of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation assets of such plan for purposes as of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentssuch date.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Rock of Ages Corp)
Employee Plans. (a) Section 3.12(a5.11(a) of the Contributor Company Disclosure Schedule Letter sets forth a true an accurate and complete list of each all Company Employee Benefit PlanPlans.
(b) The With respect to each Company Employee Benefit Plan, the Company has previously provided made available to Local Insight true Parent an accurate and complete copies copy of: (i) each plan document, including all amendments thereto, and all related trusts or service agreements, and written summaries of the material terms of all unwritten Company Employee Benefit Plan; Plans, (ii) the actuarial report three most recent annual reports (Form 5500 Series) for each Company Employee Benefit Plan (if applicable) for each of the last three years; that is subject to such reporting requirements, (iii) the current summary plan description, including any material modifications, or any written summary provided to participants with respect to any plan for which no summary plan description exists, and any other material employee communications (iv) the most recent determination letter (or if applicable, advisory or opinion letter) from the IRS Internal Revenue Service, if any, and any pending applications for a determination or opinion letter and (if applicablev) for each all notices or other written correspondence regarding such Company Employee Benefit Plan; Plan between a plan fiduciary, the Company, or any ERISA Affiliate and the Internal Revenue Service, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental Authority.
(ivc) the current summary plan description of each Each Company Employee Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received been the subject of a favorable determination and up-to-date determination, advisory or opinion letter from the IRSInternal Revenue Service on which the Company is entitled to rely, and there are no event has occurred, no condition, facts or circumstances exist that would reasonably be expected to adversely affect cause the qualified status loss of any such qualification or the imposition of material liability, penalty or Tax under ERISA, the Code or other applicable Law. Except as set forth in Section 5.11(c) of the Company Disclosure Letter, all assets of the Company Employee Benefit Plan, and each such Plans consist of cash or actively traded securities.
(d) Each Company Employee Benefit Plan has been timely amended for operated, established, maintained and administered in all material respects in accordance with its terms and with all provisions of ERISA, the legislation commonly known as “GUST” Code and “EGTRRA” and other applicable Laws.
(e) Neither the Company nor the Company Subsidiary has been submitted engaged in any non-exempt material prohibited transaction, within the meaning of Section 4975 of the Code or Section 406 of ERISA, and, to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none knowledge of the Company, no such prohibited transaction has occurred with respect to any Company SubsidiaryEmployee Benefit Plan. No fiduciary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in within the meaning of Section 3(353(21) of ERISA), has breached his or her fiduciary duty with respect to a Company Employee Benefit Plan or otherwise has any liability in connection with any acts taken (Bor failed to be taken) with respect to the administration or investment of the assets of any Company Employee Benefit Plan.
(f) No Company Employee Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, or is a “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA), (C) any benefit plan, program, agreement, ERISA or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) a “multiple employer plan” within the meaning of Section 210 4063 or 4064 of ERISA, and none of the Company, the Company Subsidiary or any ERISA Affiliate of the Company or the Company Subsidiary has ever sponsored, maintained, contributed to, been required to contribute to, or had any obligations or incurred any liability under any plan that is, or was, subject to Title IV of ERISA or Section 412 of the Code, or is, or was, a “multiemployer plan” within the meaning of Section 3(37) of ERISA. Neither the Company nor the Company Subsidiary would reasonably be expected to have any material liability under a “multiple employer plan” within the meaning of Section 4063 and 4064 of ERISA or Section 413(c) of the Code; .
(ivg) no Neither the Company nor the Company Subsidiary offers, has any liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in fullor obligation to provide life, and no condition exists that presents a risk health or medical benefits or insurance coverage to any individual, or to the Companydependent of any individual, for any period extending beyond the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none termination of the Companyindividual’s employment, any Company Subsidiary or, except to the Knowledge extent required by the Consolidated Omnibus Budget Reconciliation Act of the Contributors, any other Person, including any fiduciary, has engaged 1985 or similar provisions of state Law.
(h) Except as set forth in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i5.11(h) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure ScheduleLetter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either Transactions, alone or in conjunction combination with any other event): event (such as a termination of employment) will (i) result in any payment becoming due, or increase the amount of any compensation due, to any employee or former employee of the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severanceSubsidiary, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any payment becoming due under any Company Employee Benefit Plan, (iii) increase any benefits otherwise payable under any Company Employee Benefit Plan, (iv) except as provided in Section 4.4, result in the acceleration of the time of payment or vesting ofof any such compensation or benefits, (v) result in the payment of any amount that would, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code, (vi) result in the triggering or imposition of any restrictions or limitations on the rights of the Company or the Company Subsidiary to amend or terminate any Company Employee Benefit Plan or (vii) entitle the recipient of any payment or benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefit.
(i) All Company Stock Options and Company RSUs have been granted in accordance with the terms of the applicable Stock Plan and applicable Law. Each Company Stock Option has an exercise price that is no less than the fair market value of the underlying Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code, and is otherwise exempt from Section 409A of the Code. The Company has made available to Parent accurate and complete copies of (i) the forms of standard award agreement under the Stock Plans and (ii) copies of any award agreements that materially deviate from such forms. The treatment of the Company Stock Options and Company RSUs under this Agreement does not violate the terms of the Stock Plans or any Contract governing the terms of such awards and will not cause adverse tax consequences under Section 409A of the Code.
(j) No Company Employee Benefit Plan is subject to any Laws other than those of the United States or any state, county, or municipality in the United States, nor is maintained outside of the United States or for the benefit of employees located outside of the United States, and neither the Company nor the Company Subsidiary contributes to or has any requirement obligation to fund contribute to any scheme, plan or securearrangement mandated by a government other than the United States federal government.
(k) Other than routine claims for benefits, no actions, investigations, suits, or claims with respect to any Company Employee Benefit Plan are pending or, to the knowledge of the Company, threatened, and there are no facts that reasonably would be expected to give rise to any such actions, suit or claims against any Company Employee Benefit Plan, any amounts fiduciary with respect to a Company Employee Benefit Plan or benefits or result in any breach the assets of or default under any a Company Employee Benefit Plan.
(l) There has been no amendment to, or written interpretation of or announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Company Employee Benefit Plan that would materially increase the expense of maintaining such Company Employee Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date.
Appears in 1 contract
Employee Plans. (a) Section 3.12(a) of the Contributor Disclosure Schedule sets forth a true and complete list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on Schedule 6.2(i) of the Contributor Intek Disclosure ScheduleSchedules, each Company Benefit Plan has all employee benefit, welfare, bonus, deferred compensation, pension, profit sharing, stock option, employee stock ownership, consulting, severance, or fringe benefit plans, formal or informal, written or oral, and all trust agreements related thereto, relating to any present or former directors, officers or employees of Intek or any Intek Subsidiary (collectively, "Intek Employee Plans") have been maintained, funded operated, and administered in substantial compliance with their terms and currently comply, and have at all relevant times complied, in all material respects with its terms and applicable Law, including ERISA and the Code; , to the extent applicable, and any other applicable laws. With respect to each Intek Employee Plan which is a pension plan (iias defined in Section 3(2) of ERISA), except as set forth in Schedule 6.2(i) of the Intek Disclosure Schedules: each Company Benefit Plan pension plan as amended (and any trust relating thereto) intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan either has been determined by the Internal Revenue Service ("IRS") to be so qualified or is the subject of a pending application for such determination that was timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Companyfiled, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” there is no accumulated funding deficiency (as defined in Section 3(35302 of ERISA and Section 412 of the Code), whether or not waived, and no waiver of the minimum funding standards of such sections has been requested from the IRS, no reportable event described in Section 4043 of ERISA has occurred, no defined benefit plan has been terminated, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate a defined benefit plan or to appoint a trustee or administrator of a defined benefit plan, and no circumstances exist that constitute grounds under Section 4042 of ERISA entitling the Pension Benefit Guaranty Corporation to institute any such proceedings, no pension plan is a "multiemployer plan" and as of the last day of the most recent plan year which ended prior to the date hereof and for which an actuarial valuation has been issued by the plan's actuary, with respect to each defined benefit plan which is a "single-employer plan" (within the meaning of Section 4001(a)(15) of ERISA) the actuarially determined present value of all "benefit liabilities" (within the meaning of Section 4001(a)(16) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) determined on the basis of the Contributor Disclosure Scheduleactuarial assumptions contained in the plan's most recent actuarial valuation, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within did not exceed the meaning of Section 210 of ERISA or Section 413(c) then current value of the Code; (iv) assets of the plan and there has been no material change in the financial condition of the plan since the last day of the most recent plan year. No liability under subtitle C or D of Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries Intek or any other Company ERISA Affiliate Intek Subsidiary with respect to any "single-employer plan", formerly maintained by any of incurring a liability thereunder; (v) none of the Company, them or by any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection entity which is considered one employer with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Intek under Section 409 or 502(i) 4001 of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agentsCode.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution 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 the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default under any Company Benefit Plan.
Appears in 1 contract
Samples: Sale of Assets and Trademark Agreement (Simmonds Capital LTD)
Employee Plans. (a) Section 3.12(aSchedule 4.13(a) of the Contributor Company Disclosure Schedule sets forth lists all "employee benefit plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other employee benefit plans or other benefit arrangements, including but not limited to all employment and consulting agreements and all bonus and other incentive compensation, deferred compensation, disability, severance, retention, salary continuation, vacation, stock award, stock option, stock purchase, collective bargaining or workers' compensation agree ments, plans, policies and arrangements which the Company or any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a true "single employer" within the meaning of Sec tion 4001(b) of ERISA, maintains, is a party to, has contributed to or has any obligation to or liability for current or former employees and directors of the Company (each an "Employee Benefit Plan" and collectively, the "Employee Benefit Plans"). Schedule 4.13(a) separately identifies each of such plans and arrangements Employee Benefit Plan subject to Title IV of ERISA.
(b) True, correct and complete list copies of the following documents with respect to each Company of the Em ployee Benefit Plans (as applicable) have been delivered or made available to Buyer: (i) the most recent plan, document or agreement, related trust documents and all amendments thereto, (ii) the most recent summary plan description and all related summaries of material modifi cations, (iii) the annual report on Form 5500 and at tached schedules filed with the Internal Revenue Service in the last three years, (iv) the most recent actuarial report, (v) the most recent Internal Revenue Service determination letter, and (vi) a description of any non- written Employee Benefit Plan.
(bc) The Company has previously provided to Local Insight true and complete copies of: Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company, (i) each written Company all payments required to be made by or under any Employee Benefit Plan, any related trusts, or any collective bargaining agreement have been timely made; (ii) the actuarial report for each Company and its ERISA Affiliates have performed all material obligations required to be performed by them under any Employee Benefit Plan (if applicable) for each of the last three yearsPlan; (iii) the most recent determination letter from Employee Bene fit Plans comply in all respects and have been maintained in compliance with their terms and the IRS (if applicable) for each Company Benefit Planrequirements of ERISA, the Code and other applicable laws; and (iv) there are no actions, suits, arbitrations or claims (other than routine claims for benefits) pending or, to the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy knowledge of the description of each Company Benefit Plan not subject Company, threatened with respect to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company any Employee Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(id) Except The Company and its ERISA Affiliates have not incurred any unsatisfied withdrawal liability with respect to any "multiemployer plan" as set forth on the Contributor Disclosure Schedule, each Company defined in Section 4001(a)(3) of ERISA.
(e) Each Employee Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (ii) each Company Benefit Plan related trust which are intended to be “"qualified” " within the meaning of Section Sections 401(a) and 501(a) of the Internal Revenue Code has received a favorable determination letter of 1986, as from time to time amended (the IRS"Code"), respectively, have been determined by the Inter nal Revenue Service to be so "qualified" under such Sec tions, as amended by the Tax Reform Act of 1986, and there are the Company knows of no circumstances that fact which would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Employee Benefit Plan has been timely amended for the legislation commonly known and its related trust.
(f) Except as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter set forth on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined benefit plan” (as defined in Section 3(35) of ERISA), (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(dSchedule 4.13(f) of the Contributor Company Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability contem plated by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.
(d) Except as described in Section 3.12(d) of the Contributor Disclosure Schedulethis Agreement, neither the execution and delivery de livery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other event): (i) result in any payment becoming due, or increase the amount of compensa tion due, to any current or former employee or director of the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwise) becoming due to any Person from the Company or any of the Company Subsidiaries under any Company Benefit Plan or otherwiseits subsidiaries; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwiseEmployment Bene fit Plan; or (iii) result in any the acceleration of the time of payment or vesting ofof any such benefits.
(g) No Employee Benefit Plan has an "ac cumulated funding deficiency" within the meaning of Sec tion 302 of ERISA or Section 412 of the Code, or nor has any requirement to fund or secure, any amounts or benefits or result in any breach waiver of the minimum funding standards of Section 302 of ERISA and Section 412 of the Code been requested of or default granted by the Internal Revenue Service with respect to any Employee Benefit Plan, nor has any lien in favor of any such plan arisen under Section 412(n) of the Code or Section 302(f) of ERISA.
(h) The "benefits liabilities," as de fined in Section 4001(a)(16) of ERISA, of each of the Employee Benefit Plans subject to Title IV of ERISA using the actuarial assumptions that were used in the most recent actuarial valuation (a true and complete copy of which has been provided to Buyer) in the event it termi nated each such plan, do not exceed the fair market value of the assets of each such plan.
(i) No stock or other security issued by the Company forms or has formed a material part of the assets of any Company Employee Benefit Plan.
(j) No Employee Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for current or former employees or directors of the Company or any of its ERISA Affiliates for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable Laws, (ii) death benefits under any "pension plan" as defined in Section 3(2) of ERISA, or (iii) benefits, the full cost of which is borne by such current or former employee or director (or his or her beneficiary).
Appears in 1 contract
Employee Plans. (ai) Other than those plans, policies or programs required to be maintained by applicable law, Section 3.12(a4.11(a) of the Contributor CR Disclosure Schedule sets forth a true and complete list of Letter lists each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined employee benefit plan,” (as defined in Section 3(353(3) of ERISA)ERISA and all other pension, (B) any “multiemployer plan” (as defined in Section 3(37) of ERISA)retirement, (C) any supplemental retirement, deferred compensation, excess benefit, profit sharing, bonus, incentive, stock purchase, stock ownership, stock option, stock appreciation right, profits interest, employment, severance, salary continuation, termination, change-of-control, health, life, disability, group insurance, vacation, holiday and fringe benefit plan, program, agreementcontract, or arrangement (whether written or unwritten, qualified or nonqualified, funded or unfunded and including any that provides for post-retirement have been frozen or post-termination medicalterminated) maintained, life insurance contributed to, or other welfare-type benefits other than as described in Section 3.12(drequired to be contributed to, by:
(A) the CR Group; or
(B) any trade or business (whether or not incorporated) which is an ERISA Affiliate, under which any member of the Contributor Disclosure ScheduleCR Group or any ERISA Affiliate thereof has any Liability with respect to any current or former employee, director, officer or independent contractor of any member of the CR Group (Dthe “CR Plans”).
(ii) any “multiple employer welfare arrangement” CR has made available to Aegis, as defined in Section 3(40applicable:
(A) correct and complete copies of ERISAall documents embodying each CR Plan including (without limitation) all amendments thereto, or all related trust documents, and all material written agreements and contracts relating to each such CR Plan;
(EB) “multiple employer plan” within the meaning of Section 210 of three (3) most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or Section 413(c) of the Code; (iv) no liability under Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company, the Company Subsidiaries or any other Company ERISA Affiliate of incurring a liability thereunder; (v) none of the Company, any Company Subsidiary or, to the Knowledge of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action Code in connection with which each CR Plan;
(C) the Company, most recent summary plan description together with the Company Subsidiaries or any Company Benefit Plan would reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(isummary(ies) of material modifications thereto, if any, required under ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit CR Plan;
(D) all IRS determination, opinion, notification and advisory letters;
(E) to the extent available, all material correspondence to or from any Governmental Entity relating to any CR Plan;
(F) to the extent available, all COBRA forms and related notices within the last three (3) years;
(G) to the extent available, all discrimination tests for each CR Plan have been made or properly accrued; for the most recent three (viii3) plan years;
(H) the Companymost recent annual actuarial valuations, if any, prepared for each CR Plan;
(I) the Company Subsidiaries most recent annual and the other Company ERISA Affiliates have complied and are in compliance in periodic accounting of each CR Plan assets;
(J) all material respects with COBRA; (ix) the Company written agreements and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated as a single employer under Section 414 of the Code with any Person other than the Company and the Company Subsidiaries; (x) contracts relating to each Company Benefit Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable IRS guidance thereunder; and (xi) the Company and the Company Subsidiaries have, for purposes of each Company Benefit CR Plan, correctly classified those individuals performing services for the Company including, but not limited to, administrative service agreements, group annuity contracts and the Company Subsidiaries as common law employees, leased employees, independent contractors or agents.group insurance contracts;
(dK) Except as described in Section 3.12(d) of the Contributor Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either alone all material communications generally distributed to all employees or in conjunction with any other event): (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, “excess parachute payment” (former employees within the meaning of Section 280G of the Code), tax gross-up, forgiveness of indebtedness or otherwiselast three (3) becoming due years relating to any Person from the Company amendments, terminations, establishments, increases or any decreases in benefits, acceleration of the Company Subsidiaries under any Company Benefit Plan payments or otherwise; (ii) increase any amounts vesting schedules or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) other events which would result in any acceleration of the time of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach of or default material Liability under any Company Benefit CR Plan or proposed CR Plan;
(L) all policies pertaining to fiduciary liability insurance covering the fiduciaries for each CR Plan; and
(M) all registration statements, annual reports and prospectuses prepared in connection with any CR Plan.
Appears in 1 contract
Samples: Merger Agreement (Code Rebel Corp)
Employee Plans. (a) Section 3.12(a3.17(a) of the Contributor Company Disclosure Schedule Letter sets forth a true complete and complete accurate list of each Company Benefit Plan.
(b) The Company has previously provided to Local Insight true and complete copies of: (i) each written Company Benefit Plan; (ii) the actuarial report for each Company Benefit Plan (if applicable) for each of the last three years; (iii) the most recent determination letter from the IRS (if applicable) for each Company Benefit Plan; (iv) the current summary plan description of each Company Benefit Plan that is subject to ERISA; (v) a copy of the description of each Company Benefit Plan not subject to ERISA that is currently provided to participants in such plan; (vi) a summary of the material terms of each unwritten Company Benefit Plan; and (vii) the annual report for each Company Benefit Plan (if applicable) for each of the last three years.
(i) Except as set forth on the Contributor Disclosure Schedule, each Company Benefit Plan has been maintained, funded and administered in compliance in all material respects with its terms and applicable Law, including ERISA and the Code; (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 IRS, and there are no circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan, and each such Company Benefit Plan has been timely amended for the legislation commonly known as “GUST” and “EGTRRA” and has been submitted to the IRS for a determination letter on the GUST legislation within the applicable remedial amendment period; (iii) none of the Company, any Company Subsidiary, or any other Company ERISA Affiliate maintains, sponsors, contributes to, or has any current or potential liability or obligation under (or with respect to) (A) any “defined employee benefit plan” (as defined in Section 3(353(3) of ERISA), whether or not subject to ERISA, and (ii) employment, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, consulting, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing and whether or not covering a single individual or group of individuals) sponsored, maintained, contributed to or required to be contributed to for the benefit of any current or former employee, non-employee service provider or director of the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code (an “ERISA Affiliate”), or any of their dependents or beneficiaries, or with respect to which the Company or any of its Subsidiaries currently has or could have any material liability (including contingent liability), other than governmentally administered plans and plans mandated by applicable Law (together the “Employee Plans”). With respect to each Employee Plan other than an Employee Plan that is maintained in any non-U.S. jurisdiction (together, the “International Employee Plans”), to the extent applicable the Company has Made Available to Parent complete and accurate copies of: (A) the three (3) most recently filed annual reports on Form 5500 required to have been filed with the IRS for each Employee Plan, including all schedules thereto; (B) the most recent determination or opinion letter, if any, from the IRS for any Employee Plan that is intended to qualify under Section 401(a) of the Code; (C) the current plan documents and summary plan descriptions, or a written description of the terms of any Employee Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any notices or other communications to or from the IRS or DOL relating to any material compliance issues in respect of any such Employee Plan. With respect to each International Employee Plan, to the extent applicable, the Company has Made Available to Parent complete and accurate copies of (x) the most recent annual report or similar compliance documents required to be filed with any Governmental Authority with respect to such plan and (y) any document comparable to the determination letter referenced under clause (B) above issued by a Governmental Authority relating to the satisfaction of Law necessary to obtain the most favorable tax treatment.
(b) No Employee Plan is (i) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (Cii) any benefit plan, program, agreement, or arrangement that provides for post-retirement or post-termination medical, life insurance or other welfare-type benefits other than as described in Section 3.12(d) of the Contributor Disclosure Schedule, (D) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (E) a “multiple employer plan” within the meaning (as defined in Section 4063 or 4064 of ERISA) or (iii) subject to Section 210 302 of ERISA or ERISA, Section 413(c) 412 of the Code; (iv) no liability under Code or Title IV of ERISA has been incurred by a Company ERISA Affiliate that has not been satisfied in fullERISA, and no condition exists that presents a risk to the Company, neither the Company Subsidiaries nor any Subsidiary has ever incurred any liability with respect to a multiemployer plan, multiple employer plan or any other Company ERISA Affiliate employee benefit plan subject to Section 302 of incurring a liability thereunder; (v) none ERISA, Section 412 of the Company, any Company Subsidiary or, to the Knowledge Code or Title IV of the Contributors, any other Person, including any fiduciary, has engaged in a transaction or taken or failed to take any action in connection with which the Company, the Company Subsidiaries or any Company Benefit Plan ERISA
(c) Except as would not reasonably be expected to be subject result in material liability 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; (vi) there are no pending, or, to the Knowledge of the Contributors, threatened or anticipated claims (other than routine claims for benefits), audits, investigations, proceedings, or suits by, on behalf of or against any of the Company Benefit Plans; (vii) all payments, premiums, contributions, distributions, reimbursements or other amounts required to be paid by the Company or the Company Subsidiaries for all periods ending prior to or as of the Closing Date with respect to each Company Benefit Plan have been made or properly accrued; (viii) the Company, the Company Subsidiaries and the other Company ERISA Affiliates have complied and are in compliance in all material respects with COBRA; (ix) the Company and the Company Subsidiaries have no current or potential obligation or liability by reason of being treated its Subsidiaries, taken as a single employer under Section 414 whole, each Employee Plan has been established, maintained, operated and administered in compliance with its terms and with all applicable Law, including the applicable provisions of the Code with any Person other than the Company ERISA and the Company Subsidiaries; Code.
(xd) each Company Benefit (i) Each Employee Plan that constitutes a nonqualified deferred compensation plan for purposes of is subject to Section 409A of the Code has been operated and administered in good faith material compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder so as to avoid any Tax, interest or penalty thereunder, (ii) the document or documents that evidence each such plan or arrangement have conformed to the provisions of Section 409A of the Code and the final regulations under Section 409A of the Code since December 31, 2008; and (xiiii) any Employee Plan in existence prior to January 1, 2005, and not subject to Section 409A of the Code has not been “materially modified” (within the meaning of IRS Notice 2005 1) at any time after October 3, 2004. No Person is entitled to receive any Table of Contents additional payment (including any Tax gross-up payment) from the Company and the Company Subsidiaries have, for purposes or any of each Company Benefit Plan, correctly classified those individuals performing services for the Company and the Company its Subsidiaries as common law employees, leased employees, independent contractors or agentsa result of the imposition of additional Taxes under Section 409A of the Code.
(de) Except As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Employee Plan, the assets of any trust under any Employee Plan, or the plan sponsor, plan administrator or any fiduciary or any Employee Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(f) None of the Company, any of its Subsidiaries, or, to the Knowledge of the Company, any of their respective directors, officers, employees or agents has, with respect to any Employee Plan, engaged in or been a party to any non-exempt “prohibited transaction,” as described such term is defined in Section 3.12(d4975 of the Code or Section 406 of ERISA, which could reasonably be expected to result in the imposition of a material penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Contributor Disclosure ScheduleCode, neither in each case applicable to the Company, any of its Subsidiaries or any Employee Plan or for which the Company or any of its Subsidiaries has any indemnification obligation.
(g) No Employee Plan provides health, medical or other welfare benefits to former employees of the Company or its ERISA Affiliates, other than pursuant to Section 4980B of the Code or any similar Law.
(h) Each Employee Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter or prototype opinion letter from the IRS as to its qualifications and, to the Knowledge of the Company, no fact or event has occurred since the date of such determination letter or prototype opinion letter that would reasonably be expected to adversely affect the qualified status of any such Employee Plan.
(i) Each International Employee Plan (A) that is intended to qualify for special tax treatment has, to the Knowledge of the Company, met all requirements for such tax treatment, (B) does not have material unfunded liabilities or liabilities that could reasonably be imposed upon the assets of the Company or any Subsidiary by reason of such International Employee Plan, (C) is in material compliance with all applicable Laws, and (D) if intended or required to be qualified, approved or registered with a Governmental Authority, is and has been to the Knowledge of the Company so qualified, approved or registered and nothing has occurred that could reasonably be expected to result in the loss of such qualification, approval or registration, as applicable.
(j) Neither the execution and or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will will, either alone or in connection with any other event (A) result in any severance or payment or benefit becoming due or payable, or required to be provided, to any current or former director, officer, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such current or former director, officer, employee or independent contractor, or (C) result in the acceleration of the time of payment, vesting or funding (through a grantor trust or otherwise) of any such benefit or compensation, or (D) limit or restrict the right of the Company or any Subsidiary of the Company to merge, amend or terminate any Employee Plan.
(k) Except as would not reasonably be expected to result in material liability to the Company and its Subsidiaries, taken as a whole, all contributions, premiums and other payments required to be made with respect to any Employee Plan have been timely made, accrued or reserved for.
(l) Except as required by applicable Law or the terms of any Employee Plans as in effect on the date hereof, neither the Company nor any of its Subsidiaries has any plan or commitment to amend in any material respect or establish any new Employee Plan or to continue or materially increase any benefits under any Employee Plan. Table of Contents (m) No amount paid or payable by the Company or any Subsidiary of the Company in connection with the Merger or any of the transactions contemplated hereby (either alone or in conjunction combination with any other event): (i) result in the Company or any of the Company Subsidiaries being liable for any payment or benefit (including non-deductible remuneration (as described in Section 162(m) of the Code) severance, retention, stay-put, change of control, unemployment compensation, will be an “excess parachute payment” (within the meaning of Section 280G of the Code), tax . No Person is entitled to receive any additional payment (including any Tax gross-up, forgiveness of indebtedness or otherwiseup payment) becoming due to any Person from the Company or any of the Company its Subsidiaries under any Company Benefit Plan or otherwise; (ii) increase any amounts or benefits otherwise payable or due to any Person under any Company Benefit Plan or otherwise; or (iii) as a result in any acceleration of the time imposition of payment or vesting of, or any requirement to fund or secure, any amounts or benefits or result in any breach additional Taxes under Section 4999 of or default under any Company Benefit Planthe Code.
Appears in 1 contract
Samples: Merger Agreement (Xcerra Corp)
