Employee Plans. (a) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter. (b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation). (c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company. (d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan. (e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code. (f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 5 contracts
Samples: Agreement and Plan of Merger (Prometheus Senior Quarters LLC), Agreement and Plan of Merger (Prometheus Senior Quarters LLC), Agreement and Plan of Merger (Kapson Senior Quarters Corp)
Employee Plans. (a) The Section 3.11(a) of the Company Disclosure Schedules sets forth a correct and complete list of each Benefit Plan, and separately identifies each of its Subsidiaries the Group Company Benefit Plans.
(b) With respect to each Benefit Plan, BP has complied with made available to Mountain, to the extent applicable, correct and performed all contractual obligations complete copies of (i) the Benefit Plan document, including any amendments thereto, and all obligations under applicable federalrelated trust documents, state insurance Contracts or other funding vehicle documents, (ii) a written description of such Benefit Plan if such plan is not set forth in a written document, (iii) the most recently prepared actuarial report and local laws, rules and regulations (domestic and foreigniv) required all material correspondence to be performed by it under or from any Governmental Entity received in the last three (3) years with respect to any of the Company Benefit Plans Plan.
(as hereinafter definedi) or Each Benefit Plan (including any related trust agreement or insurance contracttrusts) has been established, other than where the failure to so comply or perform does not haveoperated and administered in material compliance with its terms and applicable Laws, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required all such plans that are intended to be made funded and/or book-reserved are funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions (ii) all contributions or other amounts payable by the Company BP, Bridgeburg or any of its their respective Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company each Benefit Plan in respect of current or Multiemployer Plan prior plan years have been made. There is paid or accrued in accordance with IFRS and (iii) there are no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, pending or, to the knowledge Knowledge of the CompanyBP, threatened claims (other than routine claims for benefits) or proceedings threatened in writing by a Governmental Entity by, on behalf of or against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Companytrust related thereto.
(d) Except as set forth Neither Bridgeburg nor any of its Affiliates has or otherwise sponsors any Benefit Plan that is subject to ERISA. None of the Benefit Plans is maintained for the benefit of Business Employees residing in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit PlanUnited States.
(e) Except as set forth in the Company Disclosure Letterrequired by applicable Law, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company no Benefit Plan which provides, provides retiree or has a liability to provide, life insurance, post-employment medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation life insurance or other insurancewelfare benefits to any Person, severanceand none of BP, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company Bridgeburg or any of its Subsidiaries has any obligation to provide such benefits. To the extent that BP, Bridgeburg or may have any liability). Copies of all Plans their respective Subsidiaries sponsors such plans, BP, Bridgeburg or the applicable Subsidiary has reserved the right to amend, terminate or modify at any time each Benefit Plan that provides retiree or post-employment disability, life insurance or other welfare benefits to any Person.
(and, if applicable, related trust agreementsf) Neither the execution and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date delivery of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result Agreement nor the consummation of the transactions contemplated by Transactions could, either alone or in combination with another event, (i) entitle any Business Employee to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any such Business Employee, (iii) directly or indirectly cause Bridgeburg or any of its Affiliates to transfer or set aside any assets to fund any material benefits under any Benefit Plan, (iv) otherwise give rise to any material liability under any Benefit Plan or (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Benefit Plan on or following the Closing.
(g) Neither the execution and delivery of this AgreementAgreement nor the consummation of the Transactions could, either alone or in combination with another event, result in the payment of any amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code.
Appears in 3 contracts
Samples: Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.)
Employee Plans. (a) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreignSection 3.9(a) required to be performed by it under or with respect to any of the Company Benefit Plans Disclosure Schedules sets forth a true, correct and complete list as of the Agreement Date of each material Company Plan (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply any offer letter or perform other employment Contract that is terminable “at-will” or following a notice period imposed by applicable Law and does not haveprovide for severance, nor is reasonably likely to haveequity or equity-based compensation or retention, a Material Adverse Effect on the Company. All contributions and change of control, transaction or similar bonuses other than severance payments required to be made by the Company or any Company Subsidiaries under applicable foreign Law).
(b) With respect to each Company Plan set forth on Section 3.9(a) of its Subsidiaries the Company Disclosure Schedules, the Company has made available to any Parent a true, correct and complete copy of, as applicable: (i) each written Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required amendments thereto, if any, or, with respect to be made any unwritten Company Plan, a summary of the material terms thereof; (ii) the current summary plan description of each Company Employee Benefit Plan and any material modifications thereto, if any, or any written summary provided to participants with respect to any Company Employee Benefit Plan for which no summary plan description exists; (iii) the most recent determination letter (or Multiemployer if applicable, advisory or opinion letter) from the Internal Revenue Service or other Governmental Authority; (iv) the most recent annual report on Form 5500 or such similar report, statement or information return required to be filed with or delivered to any Governmental Authority, if any; (v) all material notices given to the administrator of such Company Employee Benefit Plan have by the Internal Revenue Service, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental Authority with respect to such Company Plan within the past three (3) years; and (vi) the most recent financial statements and actuarial or other valuation reports prepared with respect thereto.
(c) Each Company Employee Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has been made. There is no claimthe subject of a favorable determination letter (or, disputeif applicable, grievance, charge, complaint, restraining advisory or injunctive order, litigation opinion letter) from the Internal Revenue Service that has not been revoked or proceeding pending, ormeets the requirements for such treatment and, to the knowledge Knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could would reasonably be expected to affect the qualified status of any such Company Employee Benefit Plan or result in the Company imposition of any material liability, penalty or any of its Subsidiaries incurring a liability Tax under Title IV of ERISA or could constitute grounds for terminating any the Code.
(d) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Employee Benefit Plan (as hereinafter defined)is now and has been established, maintained, funded, operated and administered in accordance with its provisions and in compliance with all applicable provisions of Law, including ERISA and the Code; (ii) each all material payments and contributions required to be made under the terms of any Company Plan have been made or the amount of such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA payment or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), contribution obligation has been maintained reflected in compliance with the minimum funding standards of ERISA Company SEC Reports which are publicly available prior to the Agreement Date; and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries nothing has sought or received a waiver of its funding requirements occurred and no condition exists with respect to any Company Employee Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable eventthat could result in a material Tax, within the meaning penalty or other liability of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, including under Sections 4980B, 4980D, 4980H, 6721 and 6722 of the Code.
(e) Neither the Company nor any withdrawal Company Subsidiary maintains, sponsors, contributes to, is required to contribute to, or otherwise has any current or contingent liability or obligation under or with respect to, any “defined benefit plan” (partial as defined under 3(35) of ERISA) or completeany other plan that is or was subject to Section 302 or Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” (as defined in Section 4001 or 3(37) in respect of any multiemployer plan ERISA) or a “multiple employer plan” (within the meaning of Section 3(37210 of ERISA or Section 413 of the Code). Neither the Company nor any Company Subsidiary has any current or contingent liability or obligation on account of a Company ERISA Affiliate.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4001(a)(34980B of the Code (or any other similar state or local Law) for which the covered Person pays the full cost of coverage, none of the Company, any Company Subsidiary, or any Company Employee Benefit Plan has any present or future obligation or liability to provide post-employment or post-termination or post-ownership welfare benefits to or make any payment to, or with respect to, any present or former employee, officer, owner or director of the Company or any Company Subsidiary or to any other Person with respect to such benefits.
(g) There are no pending or, to the Knowledge of the Company, threatened Legal Proceedings or claims (other than routine claims for benefits) relating to any Company Employee Benefit Plan and, to the Knowledge of the Company, there is no fact or circumstance that would reasonably be expected to give rise to any such Legal Proceeding or claim. There has been no non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 or 407 of ERISA) or breach of fiduciary duty (a "Multiemployer Plan")as determined under ERISA) with respect to any Company Employee Benefit Plan that would result in material liability to the Company or any Company Subsidiary. All material contributions, which withdrawal liability has not distributions and premium payments have been satisfied timely made or discharged paid in full or which, either individually or accordance with the terms of the Company Employee Benefit Plan and in the aggregate, will causecompliance with applicable Law, or is reasonably likely to cause, a Material Adverse Effect on the Companyproperly accrued in accordance with GAAP.
(dh) With respect to each Company Employee Benefit Plan or other benefit or compensation plan, program, agreement, or arrangement that is subject to the applicable Law of a jurisdiction other than the United States (whether or not United States Laws also apply) or primarily for the benefit of employees, directors, individual independent contractors or other service providers of the Company or any Company Subsidiary who reside or work primarily outside of the United States (each a “Non-U.S. Plan”), without limiting the generality of this Section 3.9: (i) each Non-U.S. Plan required to be registered, or intended to meet certain regulatory requirements for favorable tax treatment, has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities and requirements, in each case, in all material respects; (ii) no Non-U.S. Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), or has any unfunded or underfunded liabilities; (iii) all Non-U.S. Plans that are required to be funded are funded to the required level, and adequate reserves have been established with respect to any Non-U.S. Plan to the extent not required to be funded or fully funded; and (iv) to the Company’s Knowledge, in the last three (3) years no claim (other than routine registration and returns) about any Non-U.S. Plan has been made to any applicable Governmental Authority.
(i) Except as set forth on Section 3.9(i) of the Company Disclosure Schedules, no payment or benefit, individually or together with any other payment or benefit, that could be received (whether in cash, property or the vesting of property), as a result of the Transactions, either alone or in combination with another event, by any current or former employee, officer, director, independent contractor or other individual service provider of the Company would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code.
(j) Except as set forth on Section 3.9(j) of the Company Disclosure Schedules, neither the Company nor any Subsidiary has any current or contingent obligation under any contract, agreement, plan or arrangement to indemnify, gross-up, reimburse or otherwise make whole any Person for any Taxes, including those imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax law).
(k) Each Company Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all U.S. Internal Revenue Service guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code.
(l) Except as set forth in Section 3.9(l) of the Company Disclosure LetterSchedules, neither the execution, delivery and performance execution of this Agreement and nor the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 consummation of the Code Transactions (alone or in conjunction with respect to any Company Benefit Plan.
(eother event) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) will (i) "Plan" means entitle any bonuscurrent or former director, incentive compensationofficer, deferred compensationemployee, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation individual independent contractor or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement individual service provider of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company Subsidiaries to any compensation or benefit, (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of its Subsidiaries contributes any compensation or has contributed benefits or trigger any other obligation under any Company Plan or otherwise, or (including any such Plans not now maintained by iii) restrict the ability of the Company to merge, amend or terminate any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this AgreementEmployee Benefit Plan.
Appears in 2 contracts
Samples: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Employee Plans. (a) The Company Schedule C(v) of the Correvio Disclosure Letter identifies each material Employee Plan. A true, up-to-date and complete copy of each material Employee Plan (including, where oral, written summaries of its Subsidiaries has complied with the terms thereof, and performed all contractual obligations any trust agreement, statement of investment policies and procedures, insurance contract, employee brochure or the like and all amendments thereto, prepared in connection with such Employee Plan) has been provided or made available to Purchaser, together with all related documentation including annuity contracts, trust or other funding agreements, participation agreements, insurance policies and contracts, actuarial reports, annual information returns, investment management agreements, copies of all material correspondence with Governmental Entities and plan summaries, employee booklets, brochures and personnel manuals. Each Employee Plan has been registered, administered and maintained in compliance with its terms and in compliance with applicable Law. All obligations regarding the Employee Plans have been satisfied and there are no outstanding defaults or violations by any party thereto and no Taxes, penalties or fees are owing or eligible under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans Employee Plans.
(as hereinafter definedb) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required Each Employee Plan intended to be made “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the US Internal Revenue Service or is entitled to rely upon a favorable opinion issued by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the CompanyUS Internal Revenue Service, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of Correvio, there are no existing circumstances that could reasonably be expected to affect adversely the Companyqualified status of any such Employee Plan.
(c) There are no pending, or to the knowledge of Correvio, threatened claims (other than routine claims for benefits) by, on behalf of or against or relating to any Company Benefit Employee Plan or against any trust related thereto which could reasonably be expected to result in any material liability to the assets of any Company Benefit PlanCorrevio Group, taken as a whole, and no audit or other proceeding by a Governmental Entity, which could reasonably be expected to result in any material liability to the Correvio Group, taken as a whole, is reasonably likely pending, or to have a Material Adverse Effect on the Company. The Company and each knowledge of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) Correvio, threatened with respect to any Company Benefit Employee Plan
(d) No Employee Plan beyond those reflected in the Company Benefit Plans, which benefit increases is or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2last six (6) years been covered by Title IV of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"), or any multiemployer plan within the meaning of section 3(37”) or 4001(a)(3) subject to Section 412 of the Code or Section 302 of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letterand neither Correvio, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With Subsidiaries nor any ERISA Affiliate has any liability in respect to each Company Benefit Plan subject to of Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed of them within the last six (6) years maintained, established, participated in or contributed to, or is reasonably likely or has been obligated to impose upon the Company contribute to, or has otherwise incurred any of its Subsidiaries, any withdrawal obligation or liability (partial or completeincluding any contingent liability) in respect of under, any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" . “ERISA Affiliate” means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day employer (whether or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3incorporated) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company that would be treated together with Correvio or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result single employer within the meaning of Section 414 of the transactions contemplated by this AgreementCode.
Appears in 2 contracts
Samples: Arrangement Agreement (Correvio Pharma Corp.), Arrangement Agreement
Employee Plans. (a) The Company Each plan, program, agreement or arrangement relating to employee compensation, employee benefits, severance, employment, vacation, incentive compensation and bonus compensation, in each case sponsored, or maintained by, or otherwise covering the Sellers or a Subsidiary of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to the Seller for the benefit of any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contracttheir respective employees, other than where the failure to so comply any plans, programs, agreements or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments arrangements required by applicable Law to be made adopted, sponsored or maintained, is referred to herein as a “Company Plan.” Schedule 4.30(a) contains each Company Plan under which Employees are eligible to participate. Each Company Plan has been maintained in material compliance with its terms and with the requirements prescribed by all Applicable Laws.
(b) Current and complete copies of all written Company Plans as amended to date or, where oral, written summaries of the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Companyterms thereof, and all booklets and communications concerning the Company Plans that have been provided to persons entitled to benefits under the Company Plans have been delivered or made available to the Purchaser together with current and complete copies of all material accruals required documents relating to be made the Company Plans, including, as applicable, all trust agreements, funding agreements, insurance contracts and policies, investment management agreements, subscription and participation agreements, benefit administration contracts and any financial administration contracts.
(c) There are no participating employers with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, orother than the Seller and, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating Seller; the Seller does not have any obligations under any Company Plan to provide benefits to any Company Benefit Plan person who is not an Employee or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) former Employee of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the CompanySeller.
(d) Except as set forth in on Schedule 4.30(d), none of the Company Disclosure LetterPlans provides benefits beyond retirement or other termination of service to Employees or former employees or to the beneficiaries or dependants of such Employees.
(e) Neither the Seller nor any of its Subsidiaries has any formal plan or has made any promise or commitment, whether legally binding or not, to create any new Company Plan or to improve or change the benefits provided under any Company Plan beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, applicable Law, and continuation of coverage through the end of the month in which termination occurs.
(f) Except as contemplated in this Agreement or disclosed in Schedule 4.30(f), none of the Company Plans provides for benefit increases or the acceleration of, or an increase in, securing or funding obligations that are contingent upon, or shall be triggered by, the execution, delivery and performance entering into of this Agreement and of the completion of the transactions contemplated hereby will herein.
(g) Except as would not result in material liability to the imposition Seller or any Subsidiary of the Seller, all contributions to and payments from each Company Plan that were required to be made in accordance with the terms of any federal excise tax under Section 4975 such Company Plan in respect of the Code current or prior plan years and, where applicable, with the Applicable Laws that govern such Company Plan, have been made in a reasonably timely manner; (i) each Company Plan is fully insured or fully funded (both on a going-concern and solvency basis) and no notice of underfunding, non-compliance, failure to be in good standing or otherwise has been received by Seller from any Governmental Authority; (ii) to the knowledge of the Seller, all material reports, returns and similar documents with respect to any Company Benefit Plan required to be filed with any Governmental Authority or distributed to any Company Plan participant have been filed or distributed on a reasonably timely basis; and (iii) to the knowledge of the Seller, there are no pending or threatened investigations by any Governmental Authority involving or relating to any Company Plan or any claims (except for claims for benefits payable in the normal operation of the Company Plans), suits or proceedings against the Seller or any of its Subsidiaries in respect of any Company Plan.
(eh) Except as set forth in Neither the Company Disclosure Letter, neither the Company Seller nor any of its Subsidiaries maintains participates in or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the CodeMulti-Employer Plans.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Concurrent Computer Corp/De)
Employee Plans. (a) The Each Company Benefit Plan (as defined below) (and each of related trust agreement or insurance contract) is in compliance with its Subsidiaries has complied terms and with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract), other than where the failure to so comply or perform does would not have, nor is be reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan Plans (as hereinafter defined) defined below), prior to the date hereof have been made, other than where the failure to so contribute or make payments will would not have, nor is be reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals or contributions required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is would be reasonably likely to have have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are would be reasonably likely to have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISAERISA a ("Multiemployer Plan"), other than those plans set forth in the Company Disclosure Letter.
(bCompany's 401(k) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan plan which is subject to Part 3 of Subtitle B of Title I of ERISA or qualified under Section 412 401 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such . No Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in provides for post-employment or retiree welfare benefits, except to the extent required by Part 6 of Subtitle B of Title I of ERISA or Section 412 4980B of the Code and Section 302 of ERISA, whether or not waived; (iii) neither Code. Neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the Company's knowledge, any other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has sought or received a waiver of its funding requirements engaged in any transactions in connection with respect to any Company Benefit Plan and all contributions payable with respect that would reasonably be expected to each Plan have been timely made; (iv) no reportable event, within result in the meaning imposition of a penalty pursuant to Section 4043 502 of ERISA, and no event set forth in damages pursuant to Section 4062 or 4063 409 of ERISA, has occurred with respect or a tax pursuant to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as Section 4975 of the date of Code, except where the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets imposition of such Company Benefit Plan (as of penalties, damages or taxes would not reasonably be expected to result in a Material Adverse Effect on the date of such valuation)Company.
(cb) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is would be reasonably likely to cause, a Material Adverse Effect on the Company.
(dc) Except as set forth in the Company Disclosure Letter, the The execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(ed) Except as set forth in Section 4.11 of the Company Disclosure Letter, neither no payment or benefit which will or may be made by the Company nor or any of its Subsidiaries maintains or contributes with respect to (or has maintained or contributed to) any of their employees under any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination in effect on the date hereof will be characterized as an "excess parachute payment" within the meaning of employment, except as may be required by Section 4980B section 280G(b)(1) of the Code.
(fe) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Floss Acquisitions Corp), Merger Agreement (First Commonwealth Inc)
Employee Plans. (ai) The Parent agrees that, during the period commencing at the Effective Time and ending on the first anniversary of the Effective Time, the employees of the Company and each its subsidiaries who continue employment with the Surviving Corporation or its subsidiaries (the “Acquired Employees”) will be provided with retirement and welfare benefits (other than equity based benefits) under employee benefit plans that are no less favorable in the aggregate than those currently provided by Parent to its similarly-situated employees. Parent shall use commercially reasonable efforts to cause any employee benefit plans in which the Acquired Employees become entitled to participate to take into account for purposes of eligibility and vesting thereunder, except to the extent it would result in a duplication of benefits, employment service with the Company and its Subsidiaries has complied subsidiaries as if such service were with and performed all contractual obligations and all obligations Parent, to the same extent that such service was credited under applicable federala comparable Company Plan. Parent shall, state and local laws, rules and regulations or shall cause the Surviving Corporation to,
(domestic and foreignA) required to be performed by it under or with respect to any life, health or disability insurance plan that, after the Effective Time, covers Acquired Employees and replaces a Company Plan of similar type, waive all preexisting condition limitations and waiting periods thereunder,
(B) with respect to any health insurance plan that, after the Effective Time, covers Acquired Employees and replaces a Company Benefit Plans Plan of similar type, credit each Acquired Employee for any deductibles paid prior to the Effective Time for purposes of determining each Acquired Employee’s satisfaction of that plan’s applicable deductible and out-of-pocket expenses requirements, and
(C) with respect to any life or disability insurance plan, waive any medical certification otherwise required in order to assure the continuation of participation at a level not less than that in effect immediately prior the implementation of such plan (but subject to any overall limit on the maximum amount of coverage under such plans); provided, however, each and every one of Parent’s obligations set forth in this sentence shall be subject to the outcome of its good faith negotiations with the relevant insurance carriers. Notwithstanding the foregoing, nothing contained in this Agreement shall (1) be treated as hereinafter defined) an amendment of any particular Plan, or limit in any way the ability of Parent or any related trust agreement of its subsidiaries (including after the Effective Time the Surviving Corporation and its subsidiaries) to amend or insurance contractterminate any particular Plan, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by (2) give any employee of the Company or any of its Subsidiaries subsidiaries or any other third party any right to enforce the provisions of this Section 5.9 or (3) obligate Parent, the Surviving Corporation or any of their affiliates to (x) offer or maintain any particular benefit plan or type of compensation or employee benefit or (y) continue the employment of any particular employee.
(ii) Prior to the Effective Time, if requested by Parent, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company Benefit shall (1) cause to be amended the employee benefit plans and arrangements of it and its subsidiaries to the extent necessary to provide that no employees of Parent and its subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such subsidiary explicitly authorizes such participation and (2) cause the Company’s 401(k) Plan or Multiemployer Plan (as hereinafter defined) and any other Company Plans specified by Parent to be terminated effective immediately prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to Effective Time. If Parent requests that any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the CompanyCompany Plans be terminated, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in shall adopt resolutions and shall take all other actions necessary to effect the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant such plans, to which all liabilities have not been satisfied in fullbe effective no later than the Closing Date, and no event has occurred and no condition exists that could reasonably be expected shall provide to result in Parent executed resolutions by the Board of Directors of the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of authorizing the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect termination of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Companysuch plans.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cash Systems Inc), Merger Agreement (Global Cash Access Holdings, Inc.)
Employee Plans. (a) The Company To the knowledge of the Purchaser, except as set forth in the Purchaser Disclosure Letter, the Purchaser and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Purchaser Benefit Plans (as hereinafter defineddefined below) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the CompanyPurchaser. All Except as set forth in the Purchaser Disclosure Letter, all contributions and other payments required to be made by the Company or any of Purchaser and its Subsidiaries to any Company Purchaser Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, have a Material Adverse Effect on the CompanyPurchaser, and all material accruals required to be made with respect to under any Company Purchaser Benefit Plan or Multiemployer Plan have been made. There Except as set forth in the Purchaser Disclosure Letter, there is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the best knowledge of the CompanyPurchaser and its Subsidiaries, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Purchaser Benefit Plan or against the assets of any Company Purchaser Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the CompanyPurchaser. The Company and each To the knowledge of the Purchaser, neither the Purchaser nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Purchaser Benefit Plan beyond those reflected in the Company Purchaser Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the CompanyPurchaser. The Company and each Except as set forth in the Purchaser Disclosure Letter, neither the Purchaser nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company Purchaser or its Subsidiaries required to contribute to, nor has the Company Purchaser or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Purchaser Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Purchaser Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company Purchaser or any of its Subsidiaries Subsidiary incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined)ERISA; (ii) each such Company Purchaser Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Purchaser Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company Purchaser nor any of its Subsidiaries Subsidiary has sought or received a waiver of its funding requirements with respect to any Company Purchaser Benefit Plan and all contributions payable with respect to each Plan have been timely madePlan; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth described in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Purchaser Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company no Purchaser Benefit Plan subject to Title IV would have an amount of ERISA Unfunded Benefit Liabilities (as defined in Section 4001(a)(18) of ERISA) if such plan were terminated as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation)Effective Time.
(c) Neither Except as set forth in the Company Purchaser Disclosure Letter, neither the Purchaser nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company Purchaser or any of its Subsidiaries, any withdrawal liability (complete or partial within the meanings of sections 4203 or complete4205 of ERISA, respectively) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the CompanyPurchaser.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Purchaser Disclosure Letter, neither the Company Purchaser nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Purchaser Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit benefits to any employee upon his such employee's retirement or termination of employment, except as may be required by Section 4980B of the Code.
(fe) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.arrangement
Appears in 2 contracts
Samples: Merger Agreement (Studio Plus Hotels Inc), Merger Agreement (Extended Stay America Inc)
Employee Plans. (a) Section 3.10 of the Company Disclosure Letter sets forth a list of all material Company Employee Benefit Plans. Section 3.10 of the Company Disclosure Letter separately lists any Company Employee Benefit Plan that relates primarily to employees or former employees whose principal place of work is outside of the United States (collectively, the “International Plans”).
(b) The Company has made available to Parent a true and complete copy of each written material Company Employee Benefit Plan (or a description of its Subsidiaries has complied with and performed all contractual obligations any non-written material Company Employee Benefit Plan) and all obligations under amendments thereto, if any.
(c) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Employee Benefit Plans has been maintained (as to both form and operation) in compliance with ERISA and the Code and other applicable federalLaws. Each Company Employee Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code (each, state a “Qualified Company Employee Benefit Plan”) has been the subject of a favorable determination letter (or, if applicable, advisory or opinion letter) from the Internal Revenue Service.
(d) Except as, individually or in the aggregate, has not had and local lawswould not reasonably be expected to have a Company Material Adverse Effect, rules with respect to each International Plan: (i) each such International Plan has been maintained in compliance with its terms and regulations all applicable Laws and has been maintained in good standing with applicable Governmental Authority, (domestic ii) each such International Plan intended to qualify for special tax treatment meets all such requirements for such treatment and foreign(iii) if any such International Plan is required to be performed by it under funded or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by requires the Company or any of its Subsidiaries to carry a book reserve, there exists no deficiency relating to such funding or book reserve requirement as determined pursuant to reasonable actuarial assumptions and methods and applicable Laws.
(e) Neither the Company nor any Company ERISA Affiliate has, at any time during the last six years, sponsored, contributed to or been obligated to contribute to any pension plan subject to Title IV of ERISA, any “multiemployer plan” (as defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control (within the meaning of Section 4063 of ERISA).
(f) No Company Employee Benefit Plan that is a welfare plan within the meaning of Section 3(1) of ERISA provides benefits or coverage following retirement or other termination of employment other than as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or by a comparable state Law.
(g) Section 3.10(g) of the Company Disclosure Letter lists all agreements in which the execution and delivery of this Agreement or the consummation of the Transactions will (i) result in any payment (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any director, officer or employee of the Company under any Company Employee Benefit Plan or Multiemployer otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the Company under any Company Employee Benefit Plan or otherwise that will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code that is subject to the imposition of an excise Tax under section 4999 of the Code, (as hereinafter definediii) increase any benefits otherwise payable under any Company Employee Benefit Plan, (iv) result in the acceleration of the time of payment, funding or vesting of any such benefits, or (v) result in any payment or benefit that would not be deductible pursuant to Section 162(m) of the Code.
(h) Except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, all contributions and payments accrued under each Company Employee Benefit Plan, determined in accordance with prior funding and accrual practices, have been discharged and paid on or prior to the date hereof have been madeof the most recent Company Financial Statements, other than where except as incurred since such date in the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made ordinary course consistent with respect to any Company Benefit Plan or Multiemployer Plan have been made. historical practices.
(i) There is no claimaction, disputesuit, grievanceinvestigation, charge, complaint, restraining or injunctive order, litigation audit or proceeding pending, pending against or involving or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to involving, any Company Employee Benefit Plan or against the assets of before any Company Benefit PlanGovernmental Authority that, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have has had or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could would reasonably be expected to result have a Company Material Adverse Effect.
(j) No ERISA Event has occurred or is reasonably expected to occur that, individually or in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code")aggregate, has been maintained in compliance with the minimum funding standards had or would reasonably be expected to have a Company Material Adverse Effect. The present value of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of under each Company underfunded Defined Benefit Employee Benefit Plan subject to Title IV of ERISA (did not, as of the date of the most recent actuarial valuation prepared for Company Financial Statements reflecting such Company Benefit Plan) do not amounts, exceed by more than $1,200,000 the fair market value of the assets of such Company Defined Benefit Plan (Employee Benefit Plan, and the present value of all accumulated benefit obligations of all underfunded Defined Benefit Employee Benefit Plans did not, as of the date of the most recent Company Financial Statements reflecting such valuation).
(c) Neither amounts, exceed by more than $2,600,000 the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 fair market value of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies assets of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreementsuch underfunded Defined Benefit Employee Benefit Plans.
Appears in 2 contracts
Samples: Merger Agreement (Hawk Corp), Merger Agreement (Carlisle Companies Inc)
Employee Plans. (a) The Company Section 36(a) of the Corporation Disclosure Letter lists all Employee Plans. Corporation has made available in the Data Room to Purchaser true, correct and complete copies of all the Employee Plans (or where oral, written summaries of the terms thereof) as amended, together with all material related documentation in respect thereof including funding, trust and investment management agreements, insurance contracts, service agreements, award agreements, summary plan descriptions, consultants’ reports, actuarial reports, valuations, annual information returns, financial statements and asset statements and material correspondence with any Governmental Entity, for each of its Subsidiaries at least the last three years.
(b) Each Employee Plan is and has complied been established, registered, amended, qualified, invested, funded and, in all material respects, administered in accordance with Law including ERISA, the Patient Protection and performed all contractual obligations Affordable Care Act, and the U.S. Internal Revenue Code, and in accordance with their terms. Each Employee Plan that is intended to qualify under Section 401(a) of the U.S. Internal Revenue Code has received a favorable determination or approval letter from the IRS with respect to such qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance and nothing has occurred since the date of such letter that would reasonably be expected to adversely affect the qualified status of such Corporation plan.
(c) All reports, filings, disclosures or notices required to have been filed, delivered or issued and all obligations under applicable federalcontributions, state and local laws, rules and regulations (domestic and foreign) premiums or taxes required to be performed withheld, paid or remitted by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company Corporation or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to under the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer terms of each Employee Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to made in a timely fashion in compliance in with all applicable Laws and the knowledge terms of the Companyapplicable Employee Plan.
(d) No Employee Plan is subject to any investigation, threatened examination or other proceeding, action or claim initiated by any Governmental Entity, or by any other party (other than routine claims for benefits) against and, to the knowledge of Corporation, there exists no state of facts which after notice or relating lapse of time or both would reasonably be expected to give rise to any Company Benefit such investigation, examination or other proceeding, action or claim or to affect the registration or qualification of any Employee Plan required to be registered or against qualified.
(e) All data necessary to administer each Employee Plan is in the possession of Corporation or its Subsidiaries (or their agents) and is in a form which is sufficient for the proper administration of such Employee Plan in accordance with its terms and all applicable Laws and such data is materially complete and correct.
(f) Except as contemplated by Article 2 of this Agreement, neither the execution, delivery, nor consummation of the transactions contemplated by this Agreement (alone or in conjunction with any other event) could, either alone or in combination with another event, (i) entitle any Corporation Employee or Corporation Contractor to notice or indemnity in lieu of, severance pay, termination pay or any increase in severance pay or any other termination of employment payment, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any Corporation Employee or Corporation Contractor, (iii) directly or indirectly cause Corporation or its Subsidiaries to transfer or set aside any assets to fund any benefits under any Employee Plan, (iv) otherwise give rise to any payment or liability under any Employee Plan, (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Benefit PlanEmployee Plan on or following the Effective Time, which is reasonably likely to have (vi) require a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises “gross-up,” indemnification for, or commitments to employees or specifically payment to any employee regarding individual for any future increase taxes imposed under Section 409A or Section 4999 of benefit levels the U.S. Internal Revenue Code or any other tax, or (or future creations of new benefitsvii) with respect to any Company Benefit Plan beyond those reflected result in the Company Benefit Planspayment of any amount that could, which benefit increases or creations, either individually or in combination with any other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the aggregateU.S. Internal Revenue Code.
(g) No Employee Plan is a multi-employer pension plan as defined in subsection 1(3) of the PBA or under a similar provision of any other applicable pension standards legislation, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of neither Corporation nor its Subsidiaries does not presently sponsorsponsors any Canadian Defined Benefit Pension Plan.
(h) Neither Corporation, maintainits Subsidiaries nor any ERISA Affiliate has ever maintained, contribute established, participated in or contributed to, nor or is the Company required or has been obligated to contribute to, nor or has the Company otherwise incurred any obligation or liability (including any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute tocontingent liability) under, any (i) Multiemployer Plan (as described in Section 3(37) of ERISA), (ii) employee pension benefit plan that is or was subject to Title IV of ERISA or subject to Section 412 of the U.S. Internal Revenue Code or Section 302 of ERISA, (iii) funded welfare benefit plan within the meaning of section 3(2) Section 419 of the Employee Retirement Income Security Act of 1974U.S. Internal Revenue Code, as amended ("ERISA"), or any multiemployer plan iv) “multiple employer plan” (within the meaning of section 3(37Section 210 of ERISA or Section 413(c) of the U.S. Internal Revenue Code), or 4001(a)(3(v) “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full), and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of neither Corporation, its Subsidiaries incurring a nor any ERISA Affiliate has ever incurred any liability under Title IV of ERISA or could constitute grounds for terminating any Plan that has not been paid in full.
(i) Except as hereinafter defined); (iidisclosed in Section 36(i) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code Corporation Disclosure Letter and except as required by Law, no Employee Plan provides for retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and none of 1986, as amended Corporation or its Subsidiaries has any obligation to provide such benefits.
(the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iiij) neither the Company Neither Corporation nor any of its Subsidiaries has sought a formal plan or received has made a waiver promise or commitment, whether legally binding or not, to create any additional Employee Plan or to materially improve or change any Employee Plan, including in connection with the compensation or benefits provided under any Employee Plan.
(k) No fact or circumstance exists that could adversely affect the existing Tax preferred or Tax exempt status of any Employee Plan.
(l) No insurance policy or any other Contract affecting any Employee Plan requires or permits a retroactive increase in premiums or payments due thereunder, or requires additional premiums or payments on termination of such Employee Plan or any insurance policy, contract or agreement relating thereto.
(m) All liabilities of Corporation and its funding requirements Subsidiaries (whether accrued, absolute, contingent or otherwise) related to the Employee Plans, including all Tax-related liabilities, have been fully and accurately accrued and disclosed, and reported in accordance with IFRS in the respective financial statements.
(n) The per share exercise price of each Option is no less than the fair market value of a Share on the date of grant of such Option, determined in a manner consistent with Section 409A of the U.S. Internal Revenue Code or other applicable Law. All Options cover “service recipient stock” (as defined under Treasury Regulation 1.409A-1(b)(5)(iii)) with respect to any Company Benefit Plan the grantor thereof. All Options (including the exercise price or methodology for determining the exercise price and all contributions payable with respect to each Plan substantive terms thereof) have been timely made; appropriately authorized by the Board or an appropriate committee thereof as of the applicable date of grant. No Options have been retroactively granted, or the exercise price of any such Options determined retroactively, in any case, in contravention of any applicable Law.
(ivo) no reportable event, Each Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 4043 of ERISA, and no event set forth in 409A and/or Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as 457A of the date U.S. Internal Revenue Code has been operated and maintained in all respects in operational and documentary compliance with Section 409A and/or Section 457A of the most recent actuarial valuation prepared for such Company Benefit U.S. Internal Revenue Code and applicable guidance thereunder. No Employee Plan, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) do not exceed the fair market value of the assets of such Company Benefit Plan (as U.S. Internal Revenue Code or any other provision of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company U.S. Internal Revenue Code or any of its Subsidiariessimilar foreign law, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this AgreementAgreement alone or in conjunction with any other event.
(p) Corporation has delivered to Purchaser true, correct and complete copies of all election statements under Section 83(b) of the Code, together with evidence of timely filing of such election statements with the appropriate IRS Center with respect to any Corporation Shares or other property issued to Corporation Employees or Corporation Contractor that was, at any time such individual was a U.S. taxpayer, subject to a vesting arrangement.
Appears in 2 contracts
Samples: Arrangement Agreement (Shockwave Medical, Inc.), Arrangement Agreement (Neovasc Inc)
Employee Plans. (a) Schedule 3.10 to this Agreement sets forth a list of each of the Company Benefit Plans (as defined below). The Company and each of its Subsidiaries has Subsidiary have complied with and performed in all material respects all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it them under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made under any Company Benefit Plan have been made, and there are no unfunded benefit obligations with respect to any Company Benefit Plan which have not been accounted for by reserves or Multiemployer Plan have been madeotherwise properly footnoted in accordance with generally accepted accounting principles in the Draft September 30 Financial Statements and the financial statements included in the Company SEC Documents. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the best knowledge of the CompanyCompany and its Subsidiaries, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on . Neither the Company. The Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in . Neither the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or any of its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letterotherwise.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its the Subsidiaries incurring a liability under Title IV of ERISA or which could constitute grounds for terminating any Plan pension plan of the Company or any Subsidiary (as hereinafter defined"Pension Plan"); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), ) has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Pension Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth described in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate of accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do does not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (complete or partial within the meanings of sections 4203 or complete4205 of ERISA, respectively) in respect of any multiemployer plan (within the meaning of Section section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full full. Schedule 3.10 sets forth a description of each Multiemployer Plan to which the Company or which, either individually or in the aggregate, will cause, or is reasonably likely any of its Subsidiaries has ever had an obligation to cause, a Material Adverse Effect on the Companycontribute.
(d) Except as set forth in the Company Disclosure Letter, the The execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither Neither the Company nor any of its Subsidiaries Subsidiary maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Company Benefit Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly have been furnished to Investor after the date of this AgreementPurchaser. The Company Disclosure Letter Schedule 3.10 sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Alberto Culver Co)
Employee Plans. (a) The Company and each of its Subsidiaries Subsidiary has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defineddefined below) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, have a Material Adverse Effect on the Company, and all material accruals required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the best knowledge of the CompanyCompany and its Subsidiaries, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth described in note 7 to the financial statements included in the Company Disclosure Letter.1995 Draft 10-K.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries Subsidiary incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined)Pension Plan; (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor or any of its Subsidiaries Subsidiary has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Pension Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth described in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (complete or partial within the meanings of sections 4203 or complete4205 of ERISA, respectively) in respect of any multiemployer plan (within the meaning of Section section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer 11 15 Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the The execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section section 4975 of the Code with respect to any Company Benefit Plan by virtue of such Company Benefit Plan's relationship with The Paul Xxxxxx Xxxporation or any of its subsidiaries (which include the words "Paul Xxxxxx" xx their name).
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries Subsidiary maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
. (f) (if)(i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall will be promptly furnished to Investor Parent after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Textron Inc)
Employee Plans.
(ai) The Company Schedule C(v) of the Terrace Disclosure Letter identifies each material Employee Plan. A true, up-to-date and complete copy of each material Employee Plan (including, where oral, written summaries of its Subsidiaries has complied with the terms thereof, and performed all contractual obligations any trust agreement, statement of investment policies and procedures, insurance contract, employee brochure or the like and all amendments thereto, prepared in connection with such Employee Plan) has been provided or made available to Purchaser, together with all related documentation including annuity contracts, trust or other funding agreements, participation agreements, insurance policies and contracts, actuarial reports, annual information returns, investment management agreements, copies of all material correspondence with Governmental Entities and plan summaries, employee booklets, brochures and personnel manuals. Each Employee Plan has been registered, administered and maintained in compliance with its terms and in compliance with applicable Law. All obligations regarding the Employee Plans have been satisfied and there are no outstanding defaults or violations by any party thereto and no Taxes, penalties or fees are owing or eligible under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans Employee Plans.
(as hereinafter definedii) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is are no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, or to the knowledge of the CompanyTerrace, threatened claims (other than routine claims for benefits) by, on behalf of or against or relating to any Company Benefit Employee Plan or against the assets of any Company Benefit Plan, trust related thereto which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in any material liability to the Company or any of its Subsidiaries incurring Terrace Group, taken as a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986whole, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred audit or other proceeding by a Governmental Entity, which could reasonably be expected to result in any "accumulated funding deficiency," material liability to the Terrace Group, taken as defined in Section 412 a whole, is pending, or to the knowledge of the Code and Section 302 of ERISATerrace, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements threatened with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Employee Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(ciii) Neither Except as required by applicable Law, no Employee Plan provides retiree or post- employment medical, disability, life insurance or other welfare benefits to any Person, and none of the Company nor any of its Subsidiaries has incurred, nor Terrace Group has any event occurred which has imposed or is reasonably likely obligation to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Companyprovide such benefits.
(div) Except as set forth in the Company Disclosure Letter, the execution, delivery on Schedule C(u) and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 Schedule C((v)(iv)) of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Terrace Disclosure Letter, neither the Company nor any execution and delivery of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which providesthis Agreement, or has a liability to provide, life insurance, medical, severance, shareholder or other employee welfare benefit to any employee upon his retirement or termination approval of employment, except as may be required by Section 4980B this Agreement nor the consummation of the Code.
(f) transactions contemplated by this Agreement could, either alone or in combination with another event, (i) "Plan" means entitle any bonusemployee, incentive compensationdirector, deferred compensationofficer or independent contractor of the Terrace Group to severance pay or any material increase in severance pay, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee pension benefit plan and such employee, director, officer or independent contractor, (iii) directly or indirectly cause the Terrace Group to transfer or set aside any assets to fund any material benefits under any Employee Plan, other than a Multiemployer (iv) otherwise give rise to any material liability under any Employee Plan,
(v) limit or restrict the right to merge, established by materially amend, terminate or transfer the Company assets of any Employee Plan on or any of its Subsidiaries or to which following the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement
Employee Plans. (a) The Section 4.12(a) of the Disclosure Schedule previously delivered by GM and Xxxxxx to the Company and each (the "Acquiror Disclosure Schedule") lists all "employee benefit plans," as defined in Section 3(3) of its Subsidiaries has complied with and performed all contractual obligations ERISA and all obligations under applicable federalbonus and other incentive compensation, state disability, severance, retention, salary continuation, stock and local lawsother stock-related award, rules stock option, stock purchase, collective bargaining or workers' compensation agreements, plans, policies and regulations (domestic arrangements generally made available to the employees of DIRECTV and foreign) required which will be made available to be performed by it under or with respect to any the employees of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to haveeach, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company "DIRECTV Benefit Plan" and collectively, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company "DIRECTV Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure LetterFiled GM SEC Reports or would not, each Company Benefit Plan can be terminated individually or otherwise discontinued without material liability to in the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISAaggregate, have a Material Adverse Effect on Xxxxxx, (i) no termination of all payments required to be made by or under any Company DIRECTV Employee Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in fullPlan, and no event has occurred and no condition exists that could reasonably be expected to result in the Company any related trusts, insurance policies or ancillary agreements, or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan collective bargaining agreement have been timely made; (ivii) no reportable event, within Xxxxxx has performed all obligations required to be performed by it under any DIRECTV Employee Benefit Plan; (iii) the meaning of Section 4043 DIRECTV Employee 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 event set forth in Section 4062 actions, suits, arbitrations or 4063 claims (other than routine claims for benefits) pending or, to the knowledge of ERISAXxxxxx, has occurred threatened with respect to any Company DIRECTV Employee Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Each DIRECTV Employee Benefit Plan and its related trust which provides, or has a liability are intended to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit planqualified" within the meaning of section 3(3Sections 401(a) and 501(a) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Planthe Code, other than a Multiemployer Planrespectively, established have been determined by the Company or any Internal Revenue Service to be so "qualified" under such Sections, as amended by the Tax Reform Act of its Subsidiaries or to 1986, and Xxxxxx knows of no fact which would adversely affect the Company or any qualified status of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of DIRECTV Employee Benefit Plan and its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreementtrust.
Appears in 1 contract
Employee Plans. (a1) The Company Disclosure Letter lists all material health, welfare, supplemental unemployment benefit, bonus, profit sharing, option, insurance, incentive, incentive compensation, deferred compensation, share purchase, share compensation, disability, pension or supplemental retirement plans and each other material employee or director compensation or benefit plans, policies, trusts, funds, agreements or arrangements for the benefit of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under directors or with respect to former directors of the Company or any of the Subsidiaries, Company Benefit Plans (as hereinafter defined) Employees or former Company Employees, which are maintained by or binding upon the Company or any related trust agreement of the Subsidiaries or insurance contractin respect of which the Company or any of the Subsidiaries has any actual or potential liability (collectively, other than the “Employee Plans”). The Employee Plans are available in the Data Room.
(2) All of the Employee Plans are and have been established, registered or qualified (where required) and, in all material respects, administered in accordance with all Applicable Laws, and in accordance with their terms, the failure to so comply terms of the material documents that support such Employee Plans and the terms of agreements between the Company and/or any of the Subsidiaries, as the case may be, and their respective employees and former employees who are members of, or perform does not havebeneficiaries under, nor is reasonably likely to have, a Material Adverse Effect on the CompanyEmployee Plans .
(3) All current obligations of the Company or any of the Subsidiaries regarding the Employee Plans have been satisfied in all material respects. All contributions and other payments contributions, premiums or taxes required to be made or paid by the Company or any of its Subsidiaries to any Company Benefit the Subsidiaries, as the case may be, under the terms of each Employee Plan or Multiemployer Plan (as hereinafter defined) prior to by Applicable Laws in respect of the date hereof Employee Plans have been mademade in a timely fashion in accordance with Applicable Laws in all material respects and in accordance with the terms of the applicable Employee Plan except as would not, other than where individually or in the failure aggregate, reasonably be expected to so contribute or make payments will not have, nor is reasonably likely to have, have a Material Adverse Effect on Effect. As of the Companydate hereof, and all material accruals required no currently outstanding notice of underfunding, non-compliance, failure to be made with in good standing or otherwise has been received by the Company or any of the Subsidiaries from any applicable Governmental Authority in respect to of any Company Benefit Employee Plan that is a pension or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to retirement plan.
(4) To the knowledge Knowledge of the Company, threatened no Employee Plan is subject to any pending investigation, examination or other proceeding, action or claim initiated by any Governmental Authority, or by any other party (other than routine claims for benefits) against and, to the Knowledge of the Company, there exists no state of facts which after notice or relating lapse of time or both would reasonably be expected to give rise to any Company Benefit Plan such investigation, examination or against other proceeding, action or claim or to affect the assets registration or qualification of any Company Benefit Employee Plan required to be registered or qualified.
(5) To the Knowledge of the Company, no event has occurred regarding any Employee Plan that would entitle any Person (without the consent of the Company) to wind-up or terminate any Employee Plan, in whole or in part, or which is could reasonably likely be expected to adversely affect the tax status thereof.
(6) The Company has not received any payments of surplus out of any Employee Plan and there have been no improper withdrawals or transfers of assets from any Employee Plan other than such payments, withdrawals or transfers which would not have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure LetterEffect.
(b7) There are no material unfunded liabilities in respect of any Employee Plan that is a registered pension plan (as defined under the Tax Act), including going concern unfunded liabilities, solvency deficiencies or wind-up deficiencies where applicable.
(8) Except as set forth disclosed in the Company Disclosure Letter, each the execution of this Agreement or the consummation of any of the transactions contemplated in this Agreement will not: (A) result in any material payment (including, without limitation, bonus, golden parachute, retirement, severance, unemployment compensation, or other benefit or enhanced benefit) becoming due or payable to any of the Company Benefit Plan can be terminated Employees or to any former employee of the Company or of any of its Subsidiaries; (B) materially increase the compensation or benefits otherwise discontinued without material liability payable to any of the Company Employees or any former employee of the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, ; (iC) no termination of entitle any Company Benefit Plan has occurred pursuant Employee to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to any job security or similar benefit; or (D) result in the Company acceleration of the time of payment or vesting of any of its Subsidiaries incurring a liability under Title IV of ERISA material benefits or could constitute grounds for terminating entitlements otherwise available pursuant to any Employee Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared except for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuationoutstanding Options).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Big Lots Inc)
Employee Plans. (a) The Company Each plan, program, agreement or arrangement relating to employee compensation, employee benefits, severance, employment, vacation, incentive compensation and bonus compensation, in each case sponsored, or maintained by, or otherwise covering the Sellers or a Subsidiary of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to the Seller for the benefit of any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contracttheir respective employees, other than where the failure to so comply any plans, programs, agreements or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments arrangements required by applicable Law to be made adopted, sponsored or maintained, is referred to herein as a “Company Plan.” Schedule 4.30(a) contains each Company Plan under which Employees are eligible to participate. Each Company Plan has been maintained in material compliance with its terms and with the requirements prescribed by all Applicable Laws.
(b) Current and complete copies of all written Company Plans as amended to date or, where oral, written summaries of the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Companyterms thereof, and all booklets and communications concerning the Company Plans that have been provided to persons entitled to benefits under the Company Plans have been delivered or made available to the Purchaser together with current and complete copies of all material accruals required documents relating to be made the Company Plans, including, as applicable, all trust agreements, funding agreements, insurance contracts and policies, investment management agreements, subscription and participation agreements, benefit administration contracts and any financial administration contracts.
(c) There are no participating employers with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, orother than the Seller and, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating Seller; the Seller does not have any obligations under any Company Plan to provide benefits to any Company Benefit Plan person who is not an Employee or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) former Employee of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the CompanySeller.
(d) Except as set forth in on Schedule 4.30(d), none of the Company Disclosure LetterPlans provides benefits beyond retirement or other termination of service to Employees or former employees or to the beneficiaries or dependants of such Employees.
(e) Neither the Seller nor any of its Subsidiaries has any formal plan or has made any promise or commitment, whether legally binding or not, to create any new Company Plan or to improve or change the benefits provided under any Company Plan beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, applicable Law, and continuation of coverage through the end of the month in which termination occurs.
(f) Except as contemplated in this Agreement or disclosed in Schedule 4.30(f), none of the Company Plans provides for benefit increases or the acceleration of, or an increase in, securing or funding obligations that are contingent upon, or shall be triggered by, the execution, delivery and performance entering into of this Agreement and of the completion of the transactions contemplated hereby will herein.
(g) Except as would not result in material liability to the imposition Seller or any Subsidiary of the Seller, all contributions to and payments from each Company Plan that were required to be made in accordance with the terms of any federal excise tax under Section 4975 such Company Plan in respect of the Code current or prior plan years and, where applicable, with the Applicable Laws that govern such Company Plan, have been made in a reasonably timely manner; (i) each Company Plan is fully insured or fully funded (both on a going-concern and solvency basis) and no notice of underfunding, non-compliance, failure to be in good standing or otherwise has been received by Seller from any Governmental Authority; (ii) to the knowledge of the Seller, all material reports, returns and similar documents with respect to any Company Benefit Plan required to be filed with any Governmental Authority or distributed to any Company Plan participant have been filed or distributed on a reasonably timely basis; and (iii) to the knowledge of the Seller, there are no pending or threatened investigations by any Governmental Authority involving or relating to any Company Plan or any claims (except for claims for benefits payable in the normal operation of the Company Plans), suits or proceedings against the Seller or any of its Subsidiaries in respect of any Company Plan.
(eh) Except as set forth in Neither the Company Disclosure Letter, neither the Company Seller nor any of its Subsidiaries maintains participates in or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the CodeMulti- Employer Plans.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Employee Plans. Except as set forth in the Aliant Disclosure Letter:
(ai) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Each Aliant Pension/Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Companyis, and has been, established, registered, qualified, administered and invested, in compliance with (A) the terms thereof, (B) all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claimapplicable Aliant Collective Agreements, disputeand (iii) all applicable Laws, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to except in each case where such non-compliance would not have a Material Adverse Effect on Aliant or on any of the Company. The Company Wireless Operations, the Retail Operations or the Aliant Wireline Operations.
(ii) All obligations under the Aliant Pension/Benefit Plans (whether pursuant to the terms thereof, applicable Aliant Collective Agreements or applicable Laws) have been satisfied, and each there are no outstanding defaults or violations thereunder by either Aliant or any Aliant Subsidiary and Aliant does not have knowledge of its Subsidiaries has not made any promises default or commitments to employees or specifically violation by any other party to any employee regarding any future increase Aliant Pension/Benefit Plan, other than such breaches of benefit levels (obligation, defaults or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, violations which benefit increases or creations, either individually or in the aggregate, will would not have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company Aliant or on any of its Subsidiaries ever sponsoredthe Wireless Operations, maintained, contributed to, the Retail Operations or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure LetterAliant Wireline Operations.
(biii) Except as set forth All contributions or premiums required to be withheld, paid or remitted to or in the Company Disclosure Letter, respect of each Company Aliant Pension/Benefit Plan can be terminated have been withheld, paid or otherwise discontinued without material liability remitted in a timely fashion in accordance with the terms thereof, applicable Aliant Collective Agreements and all applicable Laws, except in each case where failure to the Company withhold, pay or remit would not have a Material Adverse Effect on Aliant or on any of its Subsidiaries. With the Wireless Operations, the Retail Operations or the Aliant Wireline Operations, and no material Taxes, penalties or fees are owing or eligible under or in respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Aliant Pension/Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in fullPlan.
(iv) To the knowledge of Aliant, and no event has occurred and no condition exists that respecting any Aliant Pension/Benefit Plan which would entitle any Person (without the consent of Aliant or an Aliant Subsidiary) to wind-up or terminate any Aliant Pension/Benefit Plan, in whole or in part, or which could reasonably be expected to result in adversely affect the Company tax status thereof.
(v) The Aliant Disclosure Letter identifies the only going concern unfunded actuarial liabilities or solvency deficiencies respecting any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan the Aliant Pension/Benefit Plans.
(as hereinafter defined); (iivi) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company Neither Aliant nor any of its the Aliant Subsidiaries has sought or have received a waiver any payments of its funding requirements with respect to surplus out of any Company Aliant Pension/Benefit Plan and all contributions payable with respect to each Plan there have been timely made; (iv) no reportable event, within the meaning improper withdrawals or transfers of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to assets from any Company Aliant Pension/Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for , other than such Company Benefit Plan) do payments, withdrawals or transfers which would not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, have a Material Adverse Effect on Aliant or on any of the CompanyWireless Operations, the Retail Operations or the Aliant Wireline Operations.
(dvii) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance The entering into of this Agreement and or the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or Ancillary Agreements to which Aliant is a party or the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result completion of the transactions contemplated by this Agreementherein or therein will not materially increase the benefits payable or the funding obligations of Aliant or the Aliant Subsidiaries, or accelerate the time of payment or vesting of any benefits, under any Aliant Pension/Benefit Plan, require the funding or securing of any benefits under any Aliant Pension/Benefit Plan or increase the amount of compensation due or severance payable to any Aliant Employee.
(viii) None of the Aliant Pension/Benefit Plans, other than the pension plans or any group registered retirement savings plan or supplemental pension or retirement plans, or other post-employment benefit plans, provide benefits to Aliant Employees or former employees or to the beneficiaries or dependents of Aliant Employees or former employees beyond retirement or other termination of service.
Appears in 1 contract
Samples: Property Exchange and Arrangement Agreement (Bce Inc)
Employee Plans. (a) The Company Each Warner Employee Plan (and, where distinct, each trust or other funding vehicle supporting such plan) intended to qualify for tax exempt or tax favored status under the applicable local fiscal regime satisfies the applicable regulatory requirements for such tax exempt or tax favored status and each has obtained all appropriate confirmations, determinations and certificates necessary to confer and record such status, and nothing has occurred since the most recent date of its Subsidiaries any such assurance or is expected to occur through the Closing Date (including the Transactions) that has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under caused or with respect to any could cause the impairment of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contractsuch status, other than where the failure to so comply or perform does any such impairment which would not have, nor is reasonably likely to have, have a Warner Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure LetterEffect.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Each Warner Employee Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in substantial compliance with its terms and with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred requirements prescribed by any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect applicable statutes, orders, rules and regulations, including any applicable requirements of any relevant regulatory or fiscal body, except for such failures to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth so comply as individually or in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do would not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation)have a Warner Material Adverse Effect.
(c) Neither As of December 31, 1999, the Company nor any aggregate unfunded liability of TWI and its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) Affiliates in respect of all Warner Employee Plans computed using reasonable actuarial assumptions and determined as if all benefits under such plans were vested and payable as of such date, and disregarding any multiemployer plan (within such liabilities to the meaning of Section 3(37) extent funded or 4001(a)(3) of ERISA) (for which adequate reserves or provisions shall have been made, would not have a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Warner Material Adverse Effect on the CompanyEffect.
(d) Except No amounts are or might be payable to or in respect of any Employee Plan by any of the Warner Contributed Entities as set forth a direct or indirect result of the termination of that Employee Plan, or the termination of participation in the Company Disclosure Letterplan by any Warner Contributed Entity, and no amounts would or might be payable to any such plan by the execution, delivery and performance Ventures or any of this Agreement and the transactions contemplated hereby will not their Affiliates as a result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit PlanTransactions contemplated by this Agreement, except for such amounts as would not have a Warner Material Adverse Effect.
(e) Except as set forth in the Company Disclosure Letteron Schedule 3.17, neither the Company nor (i) there has been no amendment to, written interpretation of or announcement (whether written or not written) by TWI or any of its Subsidiaries maintains Affiliates relating to, or contributes to (change in employee participation or has maintained or contributed to) coverage under, any Company Benefit Warner Employee Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination would increase materially the expense of employment, except as may be required by Section 4980B maintaining such Warner Employee Plan above the level of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within expense incurred in respect thereof for the meaning of section 3(3) of ERISA most recent fiscal year and (ii) "Company Benefit Plan" means no employee of the Warner Music Business will become entitled to any employee pension payment, benefit plan and any Planor right in respect of his employment or termination thereof or enhanced such payment, other than a Multiemployer Plan, established by the Company benefit or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid right as a result of the transactions Transactions contemplated by this Agreementhereby, and no other employee of TWI will become entitled to any payment, benefit or right affecting the business or assets of the Warner Music Group as a result of the Transactions contemplated hereby, in any case under clause (i) or (ii) involving an amount or value that would have a Warner Material Adverse Effect.
Appears in 1 contract
Employee Plans. (a) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreignSchedule 4.10(a) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and lists all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Employee Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the on Schedule 4.10(b), no Group Company Disclosure Letterhas any obligation to contribute to a Multiemployer Plan, each Company including any triggered but unpaid withdrawal liability, and no Employee Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Multiemployer Plan is a plan that is subject to Title IV of ERISA, (ior a “multiple employer welfare arrangement” within the meaning of Section 3(40) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in fullERISA, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a material liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with or, to the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has Company’s knowledge, is reasonably expected to be incurred by any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation)Group Company.
(c) Neither Except as set forth on Schedule 4.10(c), each Employee Benefit Plan has been maintained and administered in compliance in all material respects with the Company nor terms of the plan document, and the applicable requirements of ERISA, the Code and any other Applicable Laws. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of its Subsidiaries the Code has incurred, nor has any event occurred which has imposed received a favorable determination letter from the Internal Revenue Service or is the subject of a favorable opinion letter from the Internal Revenue Service on the form of such Employee Benefit Plan and, to the Company’s knowledge, there are no facts or circumstances that would be reasonably likely to impose upon materially adversely affect the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect qualified status of any multiemployer plan (within the meaning of Section 3(37) such Employee Benefit Plan. All contributions and premium payments required to have been made by any Group Company with respect to any Employee Benefit Plan or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not Plan have been satisfied or discharged timely made in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on all material respects. To the Company’s knowledge, no fiduciary of any Employee Benefit Plan has materially breached their fiduciary duties with respect to such plan, other than a breach which has been corrected in all material respects in compliance with Applicable Law. Since January 1, 2020, there have been no pending or, to the Company’s knowledge, threatened in writing, investigations by any Governmental Entity or other claims, suits or proceedings (except routine claims for benefits) involving any Employee Benefit Plan.
(d) To the Company’s knowledge, no Group Company has engaged in any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Benefit Plan that would be reasonably likely to subject any Group Company to any material Tax or penalty (civil or otherwise) imposed by ERISA or the Code. Except as set forth in the Company Disclosure Letteron Schedule 4.10(d), the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition no material Employee Benefit Plan provides health or life insurance benefits to former employees of any federal excise tax Group Company other than health continuation coverage pursuant to COBRA. No Group Company has incurred (whether or not assessed) or would reasonably be expected to incur any material Tax or penalty under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter4980H, neither the Company nor any of its Subsidiaries maintains 6721 or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B 6722 of the Code.
(fe) With respect to each material Employee Benefit Plan, the Company has made available to Purchaser copies, to the extent applicable, of (i) "Plan" means the current plan and trust documents and the most recent summary plan description provided to participants, (ii) the three most recent annual reports (Form 5500 series), (iii) the most recent financial statements, (iv) the most recent Internal Revenue Service determination or opinion letter, and (v) all material non-routine communications to the Group Companies from any bonusGovernmental Entity or Multiemployer Plan since January 1, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, 2020 (including but not limited toto any notice of withdrawal liability).
(f) Except as set forth on Schedule 4.10(f), neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby, will (i) result in any "material payment becoming due to any employee benefit plan" within of or other individual service provider to the meaning of section 3(3) of ERISA and Group Companies, (ii) "Company materially increase any compensation or benefits otherwise payable or to be provided under any Employee Benefit Plan" means , (iii) entitle any employee pension benefit plan of, or individual service provider to, the Group Companies to material payment, or accelerate the time of payment, funding or vesting under any Employee Benefit Plan.
(g) No Group Company has any obligation to “gross-up” or otherwise indemnify any individual for the imposition of any Tax, including but not limited to under Section 4999 of the Code or under Section 409A of the Code.
(h) Except as set forth on Schedule 4.10(h) neither the execution and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date delivery of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result Agreement nor the consummation of the transactions contemplated by this Agreement, either alone or in combination with another event, will result in the payment of any amount to any “disqualified individual” (within the meaning of Section 280G of the Code (or any corresponding or similar provision of applicable state, local, or non-U.S. Law)) in respect of employment or service that, individually or in combination with any other payment, (i) will constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code, (ii) will result in the imposition of an excise Tax to the recipient of such payment pursuant to Section 4999 of the Code (or any corresponding or similar provision of applicable state, local or non-U.S. Law), (iii) will result in the payment of any amount that would not be deductible by Blocker Corp or any Group Company by reason of Section 280G of the Code, or (iv) will result in the imposition of any withholding reporting requirement of Blocker Corp or any Group Company pursuant to Section 4999 of the Code (or any corresponding or similar provision of applicable state, local or non-U.S. Law).
(i) Each material Employee Benefit Plan maintained outside of the United States (a “Non-U.S. Employee Plan”) has been established, maintained and administered in all material respects in compliance with its terms and with the requirements prescribed by any Applicable Laws. Each Non-U.S. Employee Plan (i) if intended to qualify for special tax treatment, meets all the requirements for such treatment and no event has occurred that would reasonably be expected to materially adversely affect such special tax treatment, (ii) if required to be registered or approved by any Governmental Entity, has been so registered or approved and has been maintained in good standing in all material respects with such applicable Governmental Entity, and (iii) if required to be funded, book-reserved or secured by an insurance policy, is funded, book-reserved or secured by an insurance policy, as applicable, to the extent required by Applicable Law.
Appears in 1 contract
Employee Plans. (ai) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with With respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply a Multiemployer Plan, for each Pension Plan hereafter adopted or perform does not havemaintained by Company, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries or any ERISA Affiliate, Company shall (A) (except for a Pension Plan which is unfunded and is maintained by Company or a Subsidiary primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees) seek, or cause its Subsidiaries or ERISA Affiliates to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior seek, and receive determination letters from the IRS to the date hereof have been madeeffect that such Pension Plan is qualified within the meaning of Section 401 (a) of the IRC; and (B) from and after the adoption of any such Pension Plan, other than where the failure cause such plan to be administered so contribute or make payments will not have, nor is reasonably likely as to have, a Material Adverse Effect on the avoid any material liability to Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required any ERISA Affiliates in connection with any failure to contribute to, any employee pension benefit plan within comply with the meaning requirements of section 3(2ERISA and Section 401 (a) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure LetterIRC.
(bii) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Welfare Plan hereafter adopted or maintained by Company, any of its Subsidiaries or any ERISA Affiliate, Company Benefit Plan shall comply, or cause its Subsidiaries or ERISA Affiliates to comply, in good faith and in all material respects with the notice and continuation coverage requirements of COBRA and the regulations thereunder so as not to result in any material liability to Company, any of its Subsidiaries or any ERISA Affiliates.
(iii) Company shall not, directly or indirectly, and shall not permit its Subsidiaries or any ERISA Affiliate to directly or indirectly by reason of an amendment or amendments to, or the adoption of, one or more Pension Plans subject to Title IV of ERISA, permit an Unfunded Pension Liability to exceed $250,000, or to give rise to the requirement that security must be provided to any such plan under Section 401 (ia) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii29) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the IRC. Neither Company nor any of its Subsidiaries has sought shall establish or received a waiver of its funding requirements with respect become obligated to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable eventnew Retiree Welfare Plan, within which would result in the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market present value of the assets of future liabilities under any such Company Benefit Plan (as of the date of such valuation).
(c) plans to exceed $100,000. Neither the Company nor any of its Subsidiaries has incurred, nor has or ERISA Affiliates shall establish or become obligated to any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer new unfunded Pension Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or would result in the aggregate, will cause, or is reasonably likely present value of future liabilities under any such plans to cause, a Material Adverse Effect on the Companyexceed $150,000.
(div) Except as set forth in the Company Disclosure LetterCompany, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains and any ERISA Affiliate shall not contribute or contributes become obligated to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit contribute to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Employee Plans. (a) The Company and each Torch has made available to United a copy of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federalthe form of stock option award relating to the ContentCo Benefit Plans.
(b) None of the ContentCo Entities contributes to or is obligated to contribute to, state and local laws, rules and regulations or within the six (domestic and foreign6) required years preceding this Agreement contributed to be performed by it under or with respect was obligated to contribute to any of the Company Benefit Plans defined benefit pension plan.
(as hereinafter definedc) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is are no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, pending or, to the knowledge Knowledge of the CompanyTorch, threatened (other than routine material actions, claims for benefits) or lawsuits against or relating to any Company ContentCo Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) trusts related thereto with respect to any Company the operation of such plan (other than routine benefits claims). No ContentCo Benefit Plan beyond those reflected in the Company Benefit Plansis presently under audit, which benefit increases investigation or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, examination (nor has written notice been received of a potential audit, investigation or examination) by any Governmental Entity, except as would not be material to the Company or any of its Subsidiaries ever sponsoredContentCo Business, taken as a whole.
(d) Each ContentCo Benefit Plan has been established, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth administered and funded in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of accordance with its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in fullterms, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards applicable provisions of ERISA and ERISA, the Code and no such Company other applicable Laws, except as would not be material to the ContentCo Business, taken as a whole. All contributions, premium payments or other amounts required to have been made under any ContentCo Benefit Plan has incurred to any "accumulated funding deficiency," funds or trusts established thereunder or in connection therewith have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been accrued and reported on the ContentCo Financial Statements, except as defined in Section 412 would not be material to the ContentCo Business, taken as a whole.
(e) None of the Code ContentCo Benefit Plans provide, and Section 302 none of ERISAthe ContentCo Entities has any obligation to provide, whether retiree health or retiree life insurance benefits or any applicable healthcare continuation coverage, except as required by Law, at the expense of the participant or the participant’s beneficiary or that is not waived; material to the ContentCo Business, taken as a whole.
(f) Except as expressly provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the Transactions will (either alone or in combination with another event) (i) result in any payment or benefit becoming due to any current or former director, employee or consultant of any ContentCo Entity, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or result in any other obligation pursuant to, any of the ContentCo Benefit Plans or (iii) neither limit or restrict the Company right of the ContentCo Group to merge, amend or terminate any ContentCo Benefit Plan.
(g) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will (either alone or in combination with another event) result in the payment of any of its Subsidiaries has sought amount that would, individually or received a waiver of its funding requirements in combination with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable eventother such payment, be an “excess parachute payment” within the meaning of Section 4043 280G of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Code. No ContentCo Benefit Plan subject to Title IV provides for the gross-up or reimbursement of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurredTaxes, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax including under Section 4975 409A or 4999 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Codesimilar Laws.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Employee Plans. (a) Section 3.11 of the Company Disclosure Schedules sets forth a complete list of each Company Benefit Plan, and identifies each Company Benefit Plan that is a PEO Benefit Plan. Each Company Benefit Plan that is not a PEO Benefit Plan is referred to as a “Sponsored Company Benefit Plan.” The Company and has delivered or made available to Parent copies of (as applicable): (i) each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federalCompany Benefit Plan or, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any such plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement, actuarial report, determination letter or opinion letter from the Internal Revenue Service and Form 5500 required to have been filed with the Internal Revenue Service; (iv) any related trust agreements, insurance contracts or other funding arrangements; and (v) any communications with the Internal Revenue Service, the Department of Labor or any other Governmental Entity relating to any compliance issues in respect of any such Company Benefit Plan. Except as specifically provided in the foregoing documents delivered to Parent, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has the Company or any of its Subsidiaries taken substantial steps to make any such amendments or to adopt or approve any new Company Benefit Plan.
(b) Section 3.11 of the Company Disclosure Schedules identifies each Company Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code (“Qualified Plans”). The only Qualified Plan sponsored by the Company is a PEO Benefit Plan. To the knowledge of the Company, the Internal Revenue Service has issued a favorable determination letter or opinion letter with respect to each Qualified Plan and the related trust that has not been revoked, and there are no events or circumstances that, to the knowledge of the Company, could adversely affect the qualified status of any Qualified Plan or the related trust.
(c) Each of the Sponsored Company Benefit Plans (as hereinafter defined) has been established, operated and administered in all material respects in compliance with applicable Laws. To the knowledge of the Company, each PEO Benefit Plan has been established, operated and administered in all material respects in compliance with applicable Laws. No Company Benefit Plan is, and no employee benefit plan maintained by the Company or any related trust agreement or insurance contract, other than where of its Subsidiaries during the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect six-year period ending on the date of this Agreement has been, subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. No event has occurred and, to the knowledge of the Company. All contributions and other payments required to be made by , there currently exists no condition or circumstances that would subject the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter definedi) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made liability with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claimPlans, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefitsthe provision of benefits in accordance with the terms thereof, or (ii) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) material Controlled Group Liability with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established . All amounts payable by the Company or any of its Subsidiaries or to which as of the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but date hereof with respect to which the each Company Benefit Plan in respect of current or any of its Subsidiaries has prior plan years have been paid or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed accrued in accordance with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this AgreementGAAP.
Appears in 1 contract
Employee Plans. (a) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations Section (domestic and foreign30)(a) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) Disclosure Letter lists and describes all health, welfare, supplemental unemployment benefit, bonus, profit sharing, option, insurance, incentive, incentive compensation, deferred compensation, share purchase, share compensation, disability, severance, termination, pension or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions supplemental retirement plans and other payments required to be made by employee or director employment, compensation or benefit plans, policies, trusts, funds, arrangements, Contracts or other agreements for the Company benefit of directors or any former directors of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial Company Employees or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan")former Company Employees, which withdrawal liability has not been satisfied are maintained by or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee binding upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any in respect of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has any actual or may have any liabilitypotential liability (collectively, the “Employee Plans”). Copies .
(b) The Company has disclosed in the Company Data Room true, correct and complete copies of all the Employee Plans (andas amended, if applicabletogether with all related documentation including funding and investment management agreements, related trust agreements) summary plan descriptions, and all amendments thereto and written interpretations thereof and material correspondence with regulatory authorities or other relevant Persons. No changes have occurred or are expected to occur which would materially affect the two most recent Forms 5500 information contained in the financial statements or asset statements required to be filed provided to the Purchaser.
(c) Each Employee Plan is and has been established, registered, qualified and, in all material respects, administered in accordance with Law, and in accordance with their terms, the terms of the material documents that support such Employee Plan and the terms of agreements between the Company and/or any of the Subsidiaries, as the case may be, and their respective employees and former employees who are members of, or beneficiaries under, the Employee Plan. No fact or circumstance exists which could adversely affect the registered status of any such Employee Plan.
(d) All current obligations of the Company or any of its Subsidiaries regarding the Employee Plans have been satisfied. All contributions, premiums or taxes required to be made or paid by the Company or any of its Subsidiaries, as the case may be, under the terms of each Employee Plan or by Law in respect thereto shall be promptly furnished to Investor after of the date Employee Plans have been made in a timely fashion in accordance with Law in all respects and in accordance with the terms of this Agreementthe applicable Employee Plan. The Company Disclosure Letter sets forth each has provided full and adequate disclosure of and provision for all such contributions and premiums. No current outstanding notice of underfunding, non-compliance, failure to be in good standing or otherwise has been received by the Company or any of its Subsidiaries from any applicable Governmental Entity in respect of any Employee Plan with respect to which benefits will be accelerated, vested, increased that is a pension or paid as a result retirement plan.
(e) To the knowledge of the transactions contemplated Company, no Employee Plan is subject to any pending investigation, examination or other proceeding, action or claim initiated by this Agreementany Governmental Entity, or by any other party (other than routine claims for benefits) and 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 investigation, examination or other proceeding, action or claim or to affect the registration or qualification of any Employee Plan required to be registered or qualified.
(f) The Company has not received any payments of surplus out of any Employee Plan and there have been no improper withdrawals or transfers of assets from any Employee Plan.
(g) No insurance policy or any other agreement affecting any Employee Plan requires or permits a retroactive increase in contributions, premiums or other payments due under such insurance policy or agreement.
(h) None of the Employee Plans (other than pension plans) provide for retiree benefits or for benefits to retired employees or to the beneficiaries or dependents of retired employees.
(i) No provision of any Employee Plan or of any agreement, and no act or omission of the Company, in any way limits, impairs, modifies or otherwise affects the right of the Company to unilaterally amend or terminate any Employee Plan, and no commitments to improve or otherwise amend any Employee Plan have been made.
(j) None of the Employee Plans enjoy any special tax status under Law, nor have any advance tax rulings been sought or received in respect of any Employee Plan.
(k) All employee data necessary to administer each Employee Plan in accordance with its terms and conditions and Law is in possession of the Company and such data is complete, correct, and in a form which is sufficient for the proper administration of each Employee Plan.
(l) The Company does not and has never sponsored or participated in a defined benefit pension plan.
Appears in 1 contract
Employee Plans. (a) The Company and each of its Subsidiaries has have complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defineddefined below) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan Plans (as hereinafter defined) defined below), prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, Company and all material accruals or contributions required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which will have, or is reasonably likely to have have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan Company's profit sharing plan which is subject to Part 3 of Subtitle B of Title I of ERISA or qualified under Section 412 401 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation)amended.
(cb) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(dc) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(ed) Except as set forth in the Company Disclosure Letter, neither no payment or benefit which will or may be made by the Company nor or any of its Subsidiaries maintains with respect to any of their employees under any plan or contributes agreement in effect on the date hereof will be characterized as an "excess parachute payment" within the meaning of section 280G(b)(1) of the Internal Revenue Code, as amended.
(e) All awards pursuant to the Company's Management Incentive Plan are based on the Company's performance and are not discretionary. The maximum amount of such awards in respect of 1995 is set forth in the Company Disclosure Letter. Since April 1, 1995 (i) the Company's Management Incentive Plan has not been modified or amended and (ii) the dollar amount of benefits to which any participant under the Company's Management Incentive Plan is entitled (or the method of determining entitlement to benefits) has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Codenot been modified.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" ") means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Tender Offer Statement
Employee Plans. (a) The Each of the Company and each of its Subsidiaries and ERISA Affiliates has complied with in all material respects with, and performed in all material respects all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) Laws required to be performed by it under or with respect to any to, each of the Company Benefit Plans (as hereinafter defined) or any and each related trust agreement or insurance contract. Except for contributions and other payments which are not material, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All all contributions and other payments required to be made by each of the Company or any of and its Subsidiaries and ERISA Affiliates to any Company Benefit Plan or Multiemployer other Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute . All accruals or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals contributions required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no material claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or any other Plan with respect to which either the Company or any of its Subsidiaries or ERISA Affiliates may have liability or against the assets of any Company Benefit Plan or any such other Plan, which is reasonably likely to have a Material Adverse Effect on . Neither the Company. The Company and each , nor any of its Subsidiaries or ERISA Affiliates has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future material increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those currently reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in . Neither the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each nor any of its Subsidiaries does not or ERISA Affiliates presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or any of its Subsidiaries or ERISA Affiliates required to contribute to, nor has the Company or any of its Subsidiaries or ERISA Affiliates ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), ERISA or any multiemployer plan within the meaning of section Section 3(37) or 4001(a)(3) of ERISAERISA (a "Multiemployer Plan"), other than those plans set forth in a retirement sharing plan (if any) which is a defined contribution plan qualified under Section 401 of the Company Disclosure LetterCode.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries or ERISA Affiliates has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its SubsidiariesSubsidiaries or ERISA Affiliates, any material withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), Plan which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Companyfull.
(dc) Except as set forth in the Company Disclosure Letter, the The execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code Tax or penalty with respect to any Company Benefit PlanPlan under the Code or under ERISA.
(ed) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains No payment or contributes to (benefit which will or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established made by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but ERISA Affiliates with respect to which the Company or any of its Subsidiaries has their employees under any plan or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after agreement in effect on the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits hereof will be accelerated, vested, increased or paid characterized as a result an "excess parachute payment" within the meaning of section 280G(b)(1) of the transactions contemplated by this AgreementCode.
Appears in 1 contract
Samples: Securities Purchase Agreement (Recovery Engineering Inc)
Employee Plans. (a) The To the knowledge of the Company, except as set forth in the Company Disclosure Letter, the Company and each of its Subsidiaries Subsidiary has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defineddefined below) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All Except as set forth in the Company Disclosure Letter, all contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, have a Material Adverse Effect on the Company, and all material accruals required to be made with respect to under any Company Benefit Plan or Multiemployer Plan through December 31, 1996 have been made. There Except as set forth in the Company Disclosure Letter, there is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the best knowledge of the CompanyCompany and its Subsidiaries, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The To the knowledge of the Company, neither the Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Except as set forth in the Company and each Disclosure Letter, neither the Company nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries Subsidiary incurring a material liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined)ERISA; (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries Subsidiary has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely madePlan; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth described in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each no Company Benefit Plan subject to Title IV would have an amount of ERISA Unfunded Benefit Liabilities (as defined in Section 4001(a)(18) of ERISA) if such plan were terminated as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation)Effective Time.
(c) Neither Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (complete or partial within the meanings of sections 4203 or complete4205 of ERISA, respectively) in respect of any multiemployer plan (within the meaning of Section section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries Subsidiary maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit benefits to any employee upon his such employee's retirement or termination of employment, except as may be required by Section 4980B of the Code.
(fe) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.other
Appears in 1 contract
Employee Plans. (a) The Company and each of its -------------- Subsidiaries has have complied with all requirements, and performed all contractual obligations and all obligations under applicable federalobligations, state and local laws, rules and regulations (domestic and foreign) required to be performed imposed by it under or in connection with respect to any of the Company Benefit Plans Plan (as hereinafter defined) or any related trust agreement or insurance contractcontract and the requirements and obligations imposed by applicable law (including, without limitation, the reporting and disclosure requirements imposed by ERISA or the Code (each, as hereinafter defined), other than where the failure to so comply or perform does has not havehad, nor and is not reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required by any Company Benefit Plan or applicable law to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been mademade or are properly reflected on their financial statements, other than where the failure to do so contribute or make payments will has not havehad, nor and is not reasonably likely to have, have a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, or to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which has had, or is reasonably likely to have have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have has had or are is reasonably likely to have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(bCompany's 401(k) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Deferred Savings Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.----- qualified under
Appears in 1 contract
Samples: Merger Agreement (Syntro Corp /De/)
Employee Plans. (ai) The Company With respect to other than a Multiemployer Plan, for each Plan and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required Pension Plan intended to be performed by it qualified under or with respect to any Section 401(a) of the Company Benefit Plans (as hereinafter defined) IRC hereafter adopted or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on maintained by the Company. All contributions and other payments required to be made by the Company or , any of its Subsidiaries or any ERISA Affiliate, the Company shall (A) seek, or cause its Subsidiaries or ERISA Affiliates to any Company Benefit seek, and receive determination letters from the IRS to the effect that such Plan or Multiemployer Pension Plan is qualified within the meaning of Section 401(a) of the IRC; and (as hereinafter definedB) prior from and after the adoption of any such Plan or Pension Plan, cause such plan to be qualified within the date hereof have been made, other than where meaning of Section 401(a) of the failure IRC and to so contribute be administered in all material respects in accordance with the requirements of ERISA and Section 401(a) of the IRC.
(ii) With respect to each Welfare Plan hereafter adopted or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on maintained by the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsoredor any ERISA Affiliate, maintainedto the extent applicable, contributed the Company shall comply, or cause its Subsidiaries or ERISA Affiliates to comply, in all material respects with the notice and continuation coverage requirements of Section 4980B of the IRC and the regulations thereunder.
(iii) The Company shall not, directly or indirectly, and shall not permit its Subsidiaries or any ERISA Affiliate to directly or indirectly by reason of an amendment or amendments to, or been required to contribute tothe adoption of, any employee pension one or more Pension Plans, permit the present value of all benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974liabilities, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth defined in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of assets allocable to such benefits, or to increase to the extent security must be provided to any Pension Plan under Section 401(a)(29) of the IRC in a manner which would have a Material Adverse Effect. The Company shall not directly or indirectly, and shall not permit its Subsidiaries or any ERISA Affiliate to (a) satisfy any liability under any Pension Plan by purchasing annuities from an insurance company or (b) invest the assets of any Pension Plan with an insurance company, unless, in each case, such Company Benefit Plan (as insurance company is rated AA or better by Standard & Poor's Corporation and the equivalent by each other nationally recognized rating agency at the time of the date of such valuation)investment.
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock and Convertible Note Purchase Agreement (Electronic Retailing Systems International Inc)
Employee Plans. (a) The Section 3.10(a) of the Company and Disclosure Schedules sets forth a complete list of each material Company Benefit Plan. With respect to each material Company Benefit Plan, Seller has heretofore delivered (or made available) to Buyer copies of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal(as applicable): (i) each Company Benefit Plan or, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any such plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement, actuarial report, determination letter from the Internal Revenue Service and Form 5500 required to have been filed with the Internal Revenue Service; (iv) any related trust agreements, insurance contracts or other funding arrangements and (v) any communications with the Internal Revenue Service, the Department of Labor or any other Governmental Entity relating to any compliance issues in respect of any such Company Benefit Plan. Except as specifically provided in the foregoing documents delivered to Buyer, there are no amendments to any material Company Benefit Plan that have been adopted or approved nor has Seller or any Group Company taken substantial steps to make any such amendments or to adopt or approve any new material Company Benefit Plan.
(b) Section 3.10(b) of the Company Disclosure Schedules identifies each Company Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code (“Qualified Plans”). The Internal Revenue Service has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked, and there are no events or circumstances that would reasonably be expected to adversely affect the qualified status of any Qualified Plan or the related trust.
(c) Each of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contracthas been established, other than where the failure to so comply or perform does operated and administered in compliance with applicable Laws, except for such non-compliance which would not have, nor is reasonably likely be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any No Company Benefit Plan is, and no employee benefit plan maintained by Seller or Multiemployer Plan (as hereinafter defined) prior any Group Company during the six-year period ending on the date of this Agreement has been, subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. No event has occurred and, to the date hereof have been madeknowledge of Seller, other than where the failure there currently exists no condition or circumstances that would subject Seller or any Group Company to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all any (i) material accruals required to be made liability with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claimPlans, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefitsthe provision of benefits in accordance with the terms thereof, or (ii) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) material Controlled Group Liability with respect to any employee benefit plan which is not a Company Benefit Plan beyond those reflected Plan. Except as would not reasonably be expected to result in the a Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsorEffect, maintain, contribute to, nor is the Company required to contribute to, nor has the Company all amounts payable by Seller or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) Group Company as of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With date hereof with respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer current or prior plan (within the meaning of Section 3(37) years have been paid or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged accrued in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Companyaccordance with IFRS.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Employee Plans. (a) The Company and each of its Subsidiaries has have complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defineddefined below) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan Plans (as hereinafter defined) defined below), prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, Company and all material accruals or contributions required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which will have, or is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.Neither the
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(dc) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(ed) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains no payment or contributes to (benefit which will or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established made by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which any of their employees under any plan or agreement in effect on the date hereof will be characterized as an "excess parachute payment" within the meaning of section 280G(b)(1) of the Internal Revenue Code, as amended.
(e) All awards pursuant to the Company's Management Incentive Plan are based on the Company's performance and are not discretionary. The maximum amount of such awards in respect of 1995 is set forth in the Company Disclosure Letter. Since April 1, 1995 (i) the Company's Management Incentive Plan has not been modified or any amended and (ii) the dollar amount of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect benefits to which benefits will be accelerated, vested, increased any participant under the Company's Management Incentive Plan is entitled (or paid as a result the method of the transactions contemplated by this Agreementdetermining entitlement to benefits) has not been modified.
Appears in 1 contract
Samples: Merger Agreement (Humana Inc)
Employee Plans. (a) The Company and each of its Subsidiaries Subsidiary has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defineddefined below) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of and its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, have a Material Adverse Effect on the Company, and all material accruals required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the best knowledge of the CompanyCompany and its Subsidiaries, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Neither the Company and each nor any of its Subsidiaries does not presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company or its Subsidiaries required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth described in note 7 to the financial statements included in the Company Disclosure Letter.1995 Draft 10-K.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries Subsidiary incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined)Pension Plan; (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor or any of its Subsidiaries Subsidiary has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Pension Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth described in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (complete or partial within the meanings of sections 4203 or complete4205 of ERISA, respectively) in respect of any multiemployer plan (within the meaning of Section section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the The execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section section 4975 of the Code with respect to any Company Benefit Plan by virtue of such Company Benefit Plan's relationship with The Xxxx Xxxxxx Corporation or any of its subsidiaries (which include the words "Xxxx Xxxxxx" in their name).
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries Subsidiary maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Employee Plans. (a) Schedule 3.10 to this Agreement sets forth a list of each of the Company Benefit Plans (as defined below). The Company and each of its Subsidiaries has complied with and performed in all material respects all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made under any Company Benefit Plan have been made, and there are no unfunded benefit obligations with respect to any Company Benefit Plan which have not been accounted for by reserves or Multiemployer Plan have been madeotherwise properly footnoted in accordance with generally accepted accounting principles in the financial statements included in the Company SEC Documents. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the best knowledge of the Company, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in . Except as indicated on Schedule 3.10 the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letterotherwise.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or which could constitute grounds for terminating any Plan pension plan of the Company (as hereinafter defined"Pension Plan"); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as deficiency,"as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has not sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Pension Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth described in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate of accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do does not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the The Company nor any of its Subsidiaries has not incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its SubsidiariesCompany, any withdrawal liability (complete or partial within the meaning of Sections 4203 or complete4205 of ERISA, respectively) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in full. Schedule 3.10 sets forth a description of each Multiemployer Plan to which the aggregate, will cause, or is reasonably likely Company has ever had an obligation to cause, a Material Adverse Effect on the Companycontribute.
(d) Except as set forth in the Company Disclosure Letter, the The execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the The Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains does not maintain or contributes contribute to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit benefits to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section Section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Company Benefit Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly have been furnished to Investor after the date of this AgreementPurchaser. The Company Disclosure Letter Schedule 3.10 sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lion Brewery Inc)
Employee Plans. (a) The Company and Schedule 3.11(a)(i) lists all Employee Benefit Plans.
(i) With respect to each Employee Benefit Plan, copies of its Subsidiaries has complied with and performed all contractual obligations the following documentation, to the extent applicable, have been made available to Buyer: (i) the plan document and all obligations under amendments thereto, and with respect to any unwritten Employee Benefit Plan, a written description thereof, and any related trust documents, insurance policies or other funding arrangement; (ii) the most recent summary plan description and any material written communication with participants, including any commitments as to any new Employee Benefit Plan or modification to any existing Employee Benefit Plan; (iii) for the most recent plan year for which the deadline for filing such form has expired, the IRS Form 5500 and all applicable federalattachments; (iv) the most recent financial statements; (v) the most recent IRS determination letter (or opinion letter) or request for such determination letter (or opinion letter), as applicable; (vi) any material associated administrative and investment or investment advisory agreements; and (vii) any material written communications between the Acquired Companies and any federal or state agency since January 1, 2013.
(ii) No Employee Benefit Plan provides health or other welfare benefits to former employees, directors or independent contractors of the Company or any Subsidiary other than health continuation coverage pursuant to COBRA and local lawsat the sole premium cost of the employee or former employee.
(iii) Each Employee Benefit Plan has been maintained and administered in compliance in all material respects with the applicable requirements of the written documents governing such Employee Benefit Plan, rules ERISA, the Code and regulations (domestic and foreign) required any other applicable Laws. Each Employee Benefit Plan that is intended to be performed qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS or is the subject of a favorable opinion letter from the IRS on the form of such Employee Benefit Plan and there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status of any such Employee Benefit Plan. No Employee Benefit Plan is subject to the provisions of foreign Laws or regulations or provides benefits or compensation to any Person who resides or provides services primarily outside of the United States.
(iv) Each Employee Benefit Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code is in compliance in all material respects, in form and operation, with the applicable requirements of Section 409A of the Code, the regulations thereunder and guidance provided by it the IRS. No participant is entitled to a gross-up, make-whole or indemnification payment with respect to Taxes imposed under Section 409A of the Code or Section 4999 of the Code.
(v) All contributions (including all employer contributions and employee salary reduction contributions), premiums, other payments or accruals for contributions, premiums, other payments or for incurred but not reported liabilities for all periods ending on or before the Closing Date have been paid on a timely basis as required by each Employee Benefit Plan, ERISA, the Code or any applicable Laws or accrued consistent with GAAP and past custom and practice with respect to each Employee Benefit Plan.
(vi) Neither the Acquired Companies nor any ERISA Affiliate sponsors, maintains or contributes to or has any obligation to contribute to or has any liability under or with respect to any plan that is or was subject to Title IV or Section 302 of ERISA, Section 412 of the Company Benefit Plans Code or Section 430 of the Code, a multiemployer plan (as hereinafter defineddefined in Section 3(37) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to haveof ERISA), a Material Adverse Effect on multiple employer plan (as defined in Section 413(c) of the CompanyCode), a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA), or a self-insured welfare benefit plan. All contributions and other payments required to be made by Neither the Company or nor any ERISA Affiliate has incurred any unsatisfied withdrawal liability under Title IV of its Subsidiaries to ERISA.
(vii) Neither the Acquired Companies nor any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made ERISA Affiliate has engaged in any transaction with respect to any Company Employee Benefit Plan that would be reasonably likely to subject the Acquired Companies or Multiemployer Plan have been madeBuyer to any Tax, fine, Lien or penalty (civil or otherwise) imposed by ERISA, the Code or other applicable Law. There is no claimNo action, disputesuit, grievanceaudit, chargeproceeding, complainthearing, restraining or injunctive order, litigation or proceeding pending, or, investigation with respect to the knowledge administration or the investment of the Company, threatened assets of any such Employee Benefit Plan (other than routine claims for benefits) against is pending or, to the Knowledge of the Company, threatened. To the Knowledge of the Company, there is no basis for any such action, suit, audit, proceeding, hearing, or relating to investigation.
(viii) Neither the Acquired Companies nor any Company Benefit Plan ERISA Affiliate has any material liability, whether absolute or against the assets of contingent, direct or indirect, including any Company obligations under any Employee Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company misclassification of a person as an independent contractor rather than as an employee or with respect to any employees “leased” from another entity. No person (including any leased employees (as defined in Section 414(n) of the Code) or independent contractors of the Acquired Companies and their respective Subsidiaries) who is not an employee of the Acquired Companies and its Subsidiaries is permitted to participate or participates in any Employee Benefit Plan.
(ix) Neither the Acquired Companies nor any ERISA Affiliate has terminated or curtailed, since January 1, 2011, any employee benefit plan that would, if in existence on the Closing Date, constitute an Employee Benefit Plan.
(x) The transactions contemplated by this Agreement (alone or in combination with any other event) will not (i) increase obligations or cause the acceleration of vesting in, or payment of, any benefits or other compensation under any Employee Benefit Plan beyond those reflected and will not otherwise accelerate or increase any liability under or result in forfeiture of compensation or benefits under any Employee Benefit Plan, or (ii) result in payments under any Employee Benefit Plan that (A) would not be deductible under Section 280G of the Code or (B) would result in any excise Tax on any employee of the Acquired Companies or their respective Subsidiaries under Section 4999 of the Code or any other comparable Law.
(xi) The Company Benefit Plansis not a party to any contract that could result, which benefit increases or creations, either individually separately or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination payment of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, “excess parachute payments” within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B 280G of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Winnebago Industries Inc)
Employee Plans. (a) The Section 3.10(a) of the Company and Disclosure Schedules sets forth a complete list of each material Company Benefit Plan. With respect to each material Company Benefit Plan, Seller has heretofore delivered (or made available) to Buyer copies of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal(as applicable): (i) each Company Benefit Plan or, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any such plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement, actuarial report, determination letter from the Internal Revenue Service and Form 5500 required to have been filed with the Internal Revenue Service; (iv) any related trust agreements, insurance contracts or other funding arrangements and (v) any communications with the Internal Revenue Service, the Department of Labor or any other Governmental Entity relating to any compliance issues in respect of any such Company Benefit Plan. Except as specifically provided in the foregoing documents delivered to Buyer, there are no amendments to any material Company Benefit Plan that have been adopted or approved nor has Seller or any Group Company taken substantial steps to make any such amendments or to adopt or approve any new material Company Benefit Plan. Section 3.10(b) of the Company Disclosure Schedules identifies each Company Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code (“Qualified Plans”). The Internal Revenue Service has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked, and there are no events or circumstances that would reasonably be expected to adversely affect the qualified status of any Qualified Plan or the related trust.
(c) Each of the Company Benefit Plans (as hereinafter defined) has been established, operated and administered in compliance with applicable Laws, except for such non-compliance which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. No Company Benefit Plan is, and no employee benefit plan maintained by Seller or any related trust agreement Group Company during the six-year period ending on the date of this Agreement has been, subject to Title IV or insurance contractSection 302 of ERISA or Section 412 or 4971 of the Code. No event has occurred and, to the knowledge of Seller, there currently exists no condition or circumstances that would subject Seller or any Group Company to any (i) material liability with respect to any Company Benefit Plans, other than where for the failure provision of benefits in accordance with the terms thereof, or (ii) material Controlled Group Liability with respect to so comply or perform does any employee benefit plan which is not have, nor is a Company Benefit Plan. Except as would not reasonably likely be expected to have, result in a Company Material Adverse Effect Effect, all amounts payable by Seller or any Group Company as of the date hereof with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with IFRS.
(d) No Company Benefit Plan (i) is a “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) (“Multiemployer Plan”), (ii) is a plan that has two or more contributing sponsors, at least two of whom are not under common control within the meaning of Section 4063 of ERISA (a “Multiple Employer Plan”), (iii) provides welfare benefits to employees or directors of any of the Group Companies beyond their termination of service, except as required by applicable Law. None of the Group Companies nor any of their respective ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan and none of the Group Companies nor any of their respective ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. There has been no communication by Seller or any Group Company which could reasonably be interpreted to promise employees retiree welfare benefits.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the accelerated vesting, funding or delivery of or increase the amount or value of, any payment or benefit to any employee, officer or director of any Group Company, or result in any limitation on the Company. All contributions and other payments required to be made by the right of any Group Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any related trust. No Company Benefit Plan provides for the gross-up or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining reimbursement of Taxes under Sections 4999 or injunctive order, litigation or proceeding pending, or, to the knowledge 409A of the CompanyCode, threatened or otherwise.
(other than routine claims for benefitsf) against or relating to any Each Company Benefit Plan or against that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the assets Code) that is subject to Section 409A of any Company Benefit Planthe Code has since (i) January 1, which is reasonably likely to have a Material Adverse Effect on 2005 been maintained and operated in good faith compliance with Section 409A of the Company. The Company Code and each of its Subsidiaries has Notice 2005-1, (ii) October 3, 2004, not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels been “materially modified” (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2Notice 2005-1) and (iii) January 1, 2009, been in documentary and operational compliance in all material respects with Section 409A of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure LetterCode.
(bg) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have would not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in a Company Material Adverse Effect, all Company Benefit Plans subject to the Company or Laws of any jurisdiction outside of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan the United States (as hereinafter defined); i) have been maintained in accordance with all applicable requirements, (ii) each if they are intended to qualify for special tax treatment meet all material requirements for such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA treatment and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required they are intended to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be acceleratedfunded and/or book-reserved are fully funded and/or book reserved, vestedas appropriate, increased or paid as a result of the transactions contemplated by this Agreementbased upon reasonable actuarial assumptions.
Appears in 1 contract
Employee Plans. (a) Schedule (30)(a) of the Company Disclosure Letter lists and describes all Employee Plans. The Company has disclosed in the Data Room true, correct and each complete copies of its Subsidiaries has complied all the Employee Plans as amended as of the date hereof, together with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) related documentation. No changes have occurred or are expected to occur which would materially affect the information required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior provided to the date hereof have been made, other than where the failure Purchaser pursuant to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letterthis provision.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Each Employee Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, is and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained operated in compliance accordance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISALaw. All contributions, whether premiums or not waived; (iii) neither the Company nor any of its Subsidiaries has sought Taxes required to be made or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon paid by the Company or any of its Subsidiaries, as the case may be, under the terms of each Employee Plan or by Law have been made in a timely fashion in accordance with Law and in accordance with the terms of the applicable Employee Plan. The Company has paid in full all contributions and premiums for the period up to the Effective Date even though not otherwise required to be paid until a later date or has made full and adequate disclosure of and provision for such contributions and premiums in the Company’s books and records.
(c) Other than routine claims for benefits, no Employee Plan is subject to any withdrawal liability pending action, investigation, examination, claim (partial including claims for income taxes, interest, penalties, fines or complete) in respect of any multiemployer plan (within the meaning of Section 3(37excise taxes) or 4001(a)(3) any other proceeding initiated by any Person, and there exists no state of ERISA) (a "Multiemployer Plan")facts which could reasonably be expected to give rise to any such action, which withdrawal liability has not been satisfied investigation, examination, claim or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.other proceeding
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 None of the Code with respect Employee Plans (other than pension or retirement plans) provide for retiree or post-termination benefits or for benefits to any Company Benefit Planretired or terminated employees or to the beneficiaries or dependents of retired or terminated employees.
(e) Except No Employee Plan is or is intended to be a “registered pension plan”, “deferred profit sharing plan”, a “retirement compensation arrangement”, a “registered retirement savings plan”, or a “tax-free saving account” as set forth such terms are defined in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the CodeTax Act.
(f) No provision of any Employee Plan or of any agreement, and no act or omission of the Company, in any way limits, impairs, modifies or otherwise affects the right of the Company to unilaterally amend or terminate any Employee Plan, and no commitments to improve or otherwise amend any Employee Plan have been made.
(g) No insurance policy or any other agreement affecting any Employee Plan requires or permits a retroactive increase in contributions, premiums or other payments due thereunder. The level of reserves under each Employee Plan which provides group benefits and contemplates the holding of such reserves is reasonable and sufficient to provide for all incurred but unreported claims.
(h) No advance tax rulings have been sought or received in respect of any Employee Plan.
(i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave All employee data necessary to administer each Employee Plan in accordance with its terms and conditions and all Laws is in possession of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or and/or any of its Subsidiaries or to Subsidiaries, and such data is complete, correct and in a form which is sufficient for the Company or any proper administration of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this AgreementEmployee Plan.
Appears in 1 contract
Employee Plans. (a) The Each Company Benefit Plan (as defined below) (and each of related trust agreement or insurance contract) is in compliance with its Subsidiaries has complied terms and with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreign) required to be performed by it under or with respect to any of the Company Benefit Plans (as hereinafter defined) or any related trust agreement or insurance contract), other than where the failure to so comply or perform does would not have, nor is be reasonably likely to have, have a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company, its Subsidiaries, and another entity that is or has been a member of a controlled group of organizations (within the meaning of Sections 414(b), (c), (m) or (o) of the Code) of which the Company or any of its Subsidiaries is a member (an "ERISA Affiliate") to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) defined below), prior to the date hereof have been made, other than where the failure to so contribute or make payments will would not have, nor is be reasonably likely to have, have a Material Adverse Effect on the Company, and all material accruals or contributions required to be made with respect to under any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened or anticipated (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is would be reasonably likely to have have, a Material Adverse Effect on the Company. The Company and each To the knowledge of the Company, neither the Company, any of its Subsidiaries nor any ERISA Affiliate has not made any promises or commitments communicated generally to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are would be reasonably likely to have, have a Material Adverse Effect on the Company. The Company and each Neither the Company, any of its Subsidiaries does not nor any ERISA Affiliate presently sponsorsponsors, maintainmaintains, contribute contributes to, nor is the Company Company, its Subsidiaries or any ERISA Affiliate required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISAERISA (a "Multiemployer Plan"), other than those plans set forth in the Company Disclosure Letter.
Company's 401(k) plan (bthe "401(k) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (iPlan") no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject intended to Part 3 of Subtitle B of Title I of ERISA or be qualified under Section 412 401 of the Internal Revenue Code of 1986, as amended (the "Code"). No governmental agency, including without limitation, the Internal Revenue Service of the Department of Labor, has initiated, to the knowledge of the Company, any examination, audit or investigation of the 401(k) Plan which has not been maintained in compliance with the minimum funding standards of ERISA and the Code completed and no such examination, audit or investigation has resulted in the failure of the Plan to be qualified under Section 401 of the Code. No Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in provides for post-employment or retiree health, medical, life or other welfare benefits, except to the extent required by Part 6 of Subtitle B of Title I of ERISA or Section 412 4980B of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Code. Neither the Company nor any of its Subsidiaries has incurredCompany, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability ERISA Affiliate, nor, to the Company's knowledge, any other "disqualified person" or "party in interest" (partial or completeas defined in Section 4975(e)(2) in respect of any multiemployer plan (within the meaning of Code and Section 3(37) or 4001(a)(33(14) of ERISA, respectively) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged engaged in full or which, either individually or any transactions in connection with any Company Benefit Plan that would reasonably be expected to result in the aggregateimposition of a penalty pursuant to Section 502 of ERISA, will causedamages pursuant to Section 409 of ERISA, or is a tax pursuant to Section 4975 of the Code, except where the imposition of such penalties, damages or taxes would not reasonably likely be expected to cause, result in a Material Adverse Effect on the Company.
(d) Except as set forth . No employer securities, employer real property or other employer property is included in the assets of any Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result Benefit Plan. With respect to any insurance policy providing funding for benefits or an investment alternative under any Company Benefit Plan in the imposition nature of a retroactive rate adjustment, loss sharing arrangement or other liability or loss, (i) no insurance company issuing any federal excise tax under Section 4975 such policy is in receivership, conservatorship, liquidation or similar proceeding, and (ii) to the knowledge of the Code Company, any of its Subsidiaries or any ERISA Affiliate, no such proceedings with respect to any Company Benefit Planinsurer are imminent.
(eb) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any No Company Benefit Plan which provides, provides for the payment by the Company or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement subsidiary of any kind, including, but not limited to, any amount that is an "employee benefit planexcess parachute payment" within the meaning of section 3(3280G(b)(1) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this AgreementCode.
Appears in 1 contract
Samples: Merger Agreement (Intelliquest Information Group Inc)
Employee Plans. (a) The Schedule 4.10(a) lists all Employee Benefit Plans.
(b) No Group Company and each of its Subsidiaries or ERISA Affiliate has complied with and performed all contractual obligations and all obligations under applicable federalan obligation to maintain, state and local lawssponsor or contribute to, rules and regulations (domestic and foreign) required to be performed by it or has any current or potential Liability under or with respect to to, any Multiemployer Plan, multiple employer welfare arrangement (within the meaning of the Company Benefit Plans (as hereinafter definedSection 3(40) of ERISA) or any related trust agreement multiple employer plan (as described in Section 413(c) of the Code). No Employee Benefit Plan is subject to Title IV of ERISA or insurance contractSection 412 of the Code, and no Employee Benefit Plan provides health or other welfare benefits to former employees of any Group Company other than where health continuation coverage pursuant to COBRA or similar state Law.
(c) Each Employee Benefit Plan (and each related trust, insurance Contract or other funding vehicle) has been established, maintained, operated, funded and administered in all material respects in compliance with the failure terms of such Employee Benefit Plan (or any applicable collective bargaining agreement) and with all Laws, including applicable requirements of ERISA, the Code, the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended, and any guidance issued thereunder. Each Group Company and ERISA Affiliate have complied and are in all material respects in compliance with the requirements of COBRA and any similar state Laws. Each Employee Benefit Plan that is intended to so comply be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS or perform does not haveis the subject of a favorable advisory or opinion letter from the IRS on the form of such Employee Benefit Plan. To the Company’s Knowledge, nor is there are no facts or circumstances that would be reasonably likely to have, a Material Adverse Effect on adversely affect the Company. All contributions and other payments required to be made by the qualified status for any such Employee Benefit Plan.
(d) No Group Company or has engaged in any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan prohibited transaction (as hereinafter defineddefined in Section 406 of ERISA or Section 4975 of the Code) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Employee Benefit Plan, and (ii) no Proceeding with respect to any Employee Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against is currently pending or, to the Company’s Knowledge, threatened in writing, and, to the Knowledge of the Company, there are no facts that would give rise to or relating could reasonably be expected to give rise to any Company Benefit Plan or against such Proceeding. To the assets Knowledge of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises , no act, omission or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISA, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letter, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to the Company or any of its Subsidiaries. With respect to each Company Benefit Plan subject to Title IV of ERISA, (i) no termination of any Company Benefit Plan transaction has occurred pursuant to which all liabilities have not been satisfied in full, and no event has occurred and no condition exists that could would reasonably be expected to result in the imposition on any Group Company or any of its Subsidiaries incurring a liability (A) breach of fiduciary duty Liability damages under Title IV Section 409 of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined)ERISA; (iiB) each such Company Benefit Plan which is subject a civil penalty assessed pursuant to Part 3 subsections (c), (i) or (l) of Section 502 of ERISA; or (C) a Tax, penalty or assessment imposed pursuant to Chapter 43 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Benefit Plan) do not exceed the fair market value of the assets of such Company Benefit Plan (as of the date of such valuation).
(c) Neither the Company nor any of its Subsidiaries has incurred, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, a Material Adverse Effect on the Company.
(d) Except as set forth in the Company Disclosure Letter, the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in the imposition of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) Except as set forth in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which provides, or has a liability to provide, life insurance, medical, severance, or other employee welfare benefit to any employee upon his retirement or termination of employment, except as may be required by Section 4980B D of the Code.
(fe) With respect to each Employee Benefit Plan, the Company has made available to Parent copies, to the extent applicable, of (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit the current plan, practicewith all amendments thereto (or for each Employee Benefit Plan that is not written, policy or arrangement of any kinda description thereof), including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan each trust, insurance, annuity or other funding Contract, with all amendments thereto, (iii) each administrative services agreement, (iv) the most recent financial statements and any Plan, actuarial or other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but valuation reports prepared with respect to which thereto, (v) the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans three (and, if applicable, related trust agreements3) and all amendments thereto and written interpretations thereof and the two most recent Forms annual reports on Form 5500 required to be filed with the Department of Labor with respect thereto shall be promptly furnished and all applicable schedules and attachments, (vi) the most recent summary plan description, any material modification with respect thereto and a summary of any such material modification, (vii) the most recent determination, advisory or opinion letter received from the IRS, (viii) all material notices or correspondence from or with any Governmental Authority, and (ix) all other material documents, pursuant to Investor after which such Employee Benefit Plan is maintained, funded and administered. No Employee Benefit Plan covers employees of any Person other than a Group Company or any ERISA Affiliate.
(f) With respect to each Employee Benefit Plan, all contributions, distributions, reimbursements and payments (including all employer contributions, employee salary reduction contributions and premium payments) that are due have been made within the date time periods prescribed by the terms of each Employee Benefit Plan, ERISA, the Code and other applicable Laws, and all contributions, distributions, reimbursements or payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued.
(g) Except as set forth on Schedule 4.10(g), neither the execution or delivery of this Agreement. The Agreement nor the consummation of the transactions contemplated hereby (either alone or in combination with any action by the Group Companies on or before Closing) will entitle any employee or other individual service provider of any Group Company Disclosure Letter sets (or the beneficiaries of such individuals) to any severance, change in control, retention or other similar payment pursuant to the terms of any Employee Benefit Plan; or (ii) accelerate the time of payment, funding or vesting, or increase any amount of compensation or benefits due to any current or former employee or other individual service provider of any Group Company (or their beneficiaries), or otherwise give rise to any obligation to fund or any Liability, pursuant to the terms of any Employee Benefit Plan.
(h) Except as set forth each Plan on Schedule 4.10(h), no payment which is or may be made by, from or with respect to which benefits will be acceleratedany Employee Benefit Plan or otherwise to any current or former employee, vesteddirector, increased officer, stockholder or paid as a result other service provider of any Group Company, in connection with the transactions contemplated by this Agreement, alone, or in combination with any other event, could properly be characterized as a “parachute payment” under Section 280G of the Code (without regard to Code Section 280G(b)(4)) or could be subject to an excise Tax under Section 4999 of the Code.
(i) No Group Company has any indemnity or gross-up obligation on or after the Closing for any Taxes imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax Law).
(j) No Employee Benefit Plan has been amended, modified or administered to provide the retirement plan loan and withdrawal provisions set forth in the CARES Act.
(k) Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in all material respects in compliance with Section 409A of the Code and the Treasury Regulations and other official guidance promulgated thereunder.
(l) This Section 4.10 contains the sole and exclusive representations and warranties of the Company with respect to Employee Benefit Plans.
Appears in 1 contract
Samples: Merger Agreement (PAE Inc)
Employee Plans. (a) The Company and each of its Subsidiaries has complied with and performed all contractual obligations and all obligations under applicable federal, state and local laws, rules and regulations (domestic and foreignSection 3.11(a) required to be performed by it under or with respect to any of the Company Benefit Plans (Disclosure Schedule lists all "employee benefit plans," as hereinafter defined) or any related trust agreement or insurance contract, other than where the failure to so comply or perform does not have, nor is reasonably likely to have, a Material Adverse Effect on the Company. All contributions and other payments required to be made by the Company or any of its Subsidiaries to any Company Benefit Plan or Multiemployer Plan (as hereinafter defined) prior to the date hereof have been made, other than where the failure to so contribute or make payments will not have, nor is reasonably likely to have, a Material Adverse Effect on the Company, and all material accruals required to be made with respect to any Company Benefit Plan or Multiemployer Plan have been made. There is no claim, dispute, grievance, charge, complaint, restraining or injunctive order, litigation or proceeding pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against or relating to any Company Benefit Plan or against the assets of any Company Benefit Plan, which is reasonably likely to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries has not made any promises or commitments to employees or specifically to any employee regarding any future increase of benefit levels (or future creations of new benefits) with respect to any Company Benefit Plan beyond those reflected defined in the Company Benefit Plans, which benefit increases or creations, either individually or in the aggregate, will have or are reasonably likely to have, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries does not presently sponsor, maintain, contribute to, nor is the Company required to contribute to, nor has the Company or any of its Subsidiaries ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plan within the meaning of section 3(2Section 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, stock and stock-related award, stock option, stock purchase, collective bargaining or any multiemployer plan within the meaning of section 3(37) or 4001(a)(3) of ERISAworkers' compensation agreements, other than those plans set forth in the Company Disclosure Letter.
(b) Except as set forth in the Company Disclosure Letterplans, each Company Benefit Plan can be terminated or otherwise discontinued without material liability to policies and arrangements which the Company or any of its Subsidiariessubsidiaries 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 "COMPANY EMPLOYEE BENEFIT PLAN" and collectively, the "COMPANY EMPLOYEE BENEFIT PLANS"). With respect to each None of the Company Employee Benefit Plan Plans is subject to Title IV of ERISA.
(b) True, (i) no termination of any Company Benefit Plan has occurred pursuant to which all liabilities have not been satisfied in full, correct and no event has occurred and no condition exists that could reasonably be expected to result in the Company or any of its Subsidiaries incurring a liability under Title IV of ERISA or could constitute grounds for terminating any Plan (as hereinafter defined); (ii) each such Company Benefit Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), has been maintained in compliance with the minimum funding standards of ERISA and the Code and no such Company Benefit Plan has incurred any "accumulated funding deficiency," as defined in Section 412 of the Code and Section 302 of ERISA, whether or not waived; (iii) neither the Company nor any of its Subsidiaries has sought or received a waiver of its funding requirements with respect to any Company Benefit Plan and all contributions payable with respect to each Plan have been timely made; (iv) no reportable event, within the meaning of Section 4043 of ERISA, and no event set forth in Section 4062 or 4063 of ERISA, has occurred with respect to any Company Benefit Plan; and (v) the aggregate accumulated benefit obligations of each Company Benefit Plan subject to Title IV of ERISA (as of the date complete copies of the most recent actuarial valuation prepared summary plan description for such each Company Benefit Plan) do not exceed the fair market value of the assets of such Company Employee Benefit Plan (as of have been delivered to Xxxxxx for review prior to the date of such valuation)hereof.
(c) Neither the Company nor any of its Subsidiaries has incurredExcept as would not, nor has any event occurred which has imposed or is reasonably likely to impose upon the Company or any of its Subsidiaries, any withdrawal liability (partial or complete) in respect of any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan"), which withdrawal liability has not been satisfied or discharged in full or which, either individually or in the aggregate, will cause, or is reasonably likely to cause, have a Material Adverse Effect on the Company, (i) all payments required to be made by or under any Company Employee Benefit Plan, any related trusts, insurance policies or ancillary agreements, or any collective bargaining agreement have been timely made, (ii) the Company and its subsidiaries have performed all obligations required to be performed by them under any Company Employee Benefit Plan, (iii) the Company Employee 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 the Company, threatened with respect to any Company Employee Benefit Plan.
(d) Except Each Company Employee Benefit Plan and its related trust which are intended to be "qualified" within the meaning of Sections 401(a) and 501(a) of the Code, respectively, have been determined by the Internal Revenue Service to be so "qualified" under such Sections, as set forth in amended by the Tax Reform Act of 1986, and the Company Disclosure Letter, knows of no fact which would adversely affect the execution, qualified status of any such Company Employee Benefit Plan and its related trust.
(e) Neither the execution and delivery and performance of this Agreement and nor the consummation of the transactions contemplated hereby will not (i) increase any benefits otherwise payable under any Company Employee Benefit Plan, or (ii) result in the imposition acceleration of the time of payment or vesting of any federal excise tax under Section 4975 of the Code with respect to any Company Benefit Plan.
(e) such benefits. Except as set forth in the Company Disclosure Lettercontemplated by Section 5.1(f) or 5.16 of this Agreement, neither the Company execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in any of its Subsidiaries maintains or contributes to (or has maintained or contributed to) any Company Benefit Plan which providespayment becoming due, or has a liability to provideincrease the compensation due, life insurance, medical, severance, or other employee welfare benefit to any current or former employee upon his retirement or termination director of employment, except as may be required by Section 4980B of the Code.
(f) (i) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, including, but not limited to, any "employee benefit plan" within the meaning of section 3(3) of ERISA and (ii) "Company Benefit Plan" means any employee pension benefit plan and any Plan, other than a Multiemployer Plan, established by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or has contributed (including any such Plans not now maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries does not now contribute, but with respect to which the Company or any of its Subsidiaries has or may have any liability). Copies of all Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof and the two most recent Forms 5500 required to be filed with respect thereto shall be promptly furnished to Investor after the date of this Agreement. The Company Disclosure Letter sets forth each Plan with respect to which benefits will be accelerated, vested, increased or paid as a result of the transactions contemplated by this Agreementsubsidiaries.
Appears in 1 contract
Samples: Merger Agreement (United States Satellite Broadcasting Co Inc)
