Employees and Employee Benefit Plans. (a) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA. (b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation. (c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 2015, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (d) Neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law). (e) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Law.
Appears in 3 contracts
Samples: Merger Agreement (Aetna Inc /Pa/), Merger Agreement (CVS HEALTH Corp), Merger Agreement
Employees and Employee Benefit Plans. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and each Company Employee Plan that is subject to ERISA. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, and (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1has, 2011during the last six years, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Parent Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under any such Parent Company Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 2015, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent.
(e) Except as provided under this Agreement or pursuant to Applicable Law, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in each director, officer, or employee (including each former director, officer, or employee) of the assessment of any excise taxes or penalties against Parent Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to haveany payment or benefit, individually including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan, (iii) contractually limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Company Employee Plan or (iv) result in the aggregate, a Parent Material Adverse Effectpayment of any “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(df) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, or employee or individual independent contractor (including any former director, officer, employee or individual independent contractoremployee) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 409A or 4999 of the Code.
(h) With respect to any Company Employee Plan for the benefit of Company employees or dependents thereof who perform services or who are employed outside of the United States (a “Non-U.S. Plan”), except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) if required to have been approved by any non-U.S. Governmental Authority (or permitted to have been approved to obtain any beneficial Tax or other status), such Non-U.S. Plan has been so approved or timely submitted for approval; no amendment tosuch approval has been revoked (nor, written interpretation to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or announcement application therefor that is reasonably likely to affect any such approval or increase the costs relating thereto; (whether ii) if intended to be funded and/or book reserved, such Non-U.S. Plan is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions; (iii) no material liability exists or not written) by Parent reasonably could be imposed upon the assets of the Company or any of its Affiliates relating toSubsidiaries by reason of such Non-U.S. Plan; and (iv) the financial statements of such Non-U.S. Plan (if any) accurately reflect such Non-U.S. Plan’s liabilities.
(i) On or prior to the date hereof, or making the Company has made available to Parent a change list of each Company Equity Award outstanding as of December 9, 2020 that includes (A) the number of shares of Company Common Stock underlying such Company Equity Award (assuming achievement of the applicable performance goals at the target level in employee participation or coverage underthe case of any such Company Equity Award that is a Company PSU Award), any Parent Employee Plan (B) the exercise price of each such Company Equity Award that would materially increase is a Company Stock Option, and (C) the expense vesting schedule of maintaining each such plan above the level Company Equity Award that is unvested as of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet DateDecember 9, except as required in order to comply with Applicable Law2020.
Appears in 3 contracts
Samples: Merger Agreement (Astrazeneca PLC), Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Employees and Employee Benefit Plans. (a) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011in the past six years has, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service IRS or has applied to the Internal Revenue Service IRS for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service IRS Closing Agreement Program if discovered during an Internal Revenue Service IRS audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 20152017, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim Proceeding (other than routine claims for benefits), action, suit, investigation or proceeding (benefits and including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 20152017, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) Neither Parent nor With respect to any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides covered by Subtitle B, Part 4 of Title I of ERISA or promisesSection 4975 of the Code, any postno non-employment exempt prohibited transaction has occurred that has caused or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) would reasonably be expected to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of cause Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law)to incur any material liability under ERISA or the Code.
(e) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Each Parent Employee Plan that would materially increase is an International Plan that covers Parent Service Providers located primarily in a jurisdiction where the expense of maintaining Company operates (i) has been maintained in compliance with its terms and Applicable Law, (ii) if intended to qualify for special tax treatment, meets all the requirements for such plan above the level of expense incurred treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in respect thereof for the fiscal year ended on the Parent Balance Sheet Dateaccordance with applicable accounting principles, in each case, except as required would not be expected to have, individually or in order to comply with Applicable Lawthe aggregate, a Parent Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (E Trade Financial Corp), Merger Agreement (Morgan Stanley)
Employees and Employee Benefit Plans. (a) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1has, 2011during the last six years, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(b) Except as has not had and would not reasonably be expected to havehad, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to havehad, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to havehad, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 2015, (i) each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code, and (ii) each Parent Plan is fully funded in accordance with its terms and all Applicable Laws and generally accepted actuarial principles and practices. Except as has not had and would not reasonably be expected to havehad, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent.
(d) Except as provided under this Agreement or pursuant to Applicable Law, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment each director, officer, or employee (including each former director, officer, or employee) of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to haveany payment or benefit, individually including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Parent Employee Plan, (iii) contractually limit or restrict the right of Parent or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Parent Employee Plan or (iv) result in the aggregate, a Parent Material Adverse Effectpayment of any “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(de) Neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, or employee or individual independent contractor (including any former director, officer, employee or individual independent contractoremployee) of Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(ef) There Neither Parent nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 409A or 4999 of the Code.
(g) With respect to any Parent Employee Plan for the benefit of Parent employees or dependents thereof who perform services or who are employed outside of the United States (a “Non-U.S. Parent Plan”), except as has not had, individually or in the aggregate, a Parent Material Adverse Effect: (i) if required to have been approved by any non-U.S. Governmental Authority (or permitted to have been approved to obtain any beneficial Tax or other status), such Non-U.S. Parent Plan has been so approved or timely submitted for approval; no amendment tosuch approval has been revoked (nor, written interpretation to the knowledge of Parent, has revocation been threatened) and no event has occurred since the date of the most recent approval or announcement application therefor that is reasonably likely to affect any such approval or increase the costs relating thereto; (whether ii) if intended to be funded and/or book reserved, such Non-U.S. Parent Plan is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions; (iii) no material liability exists or not written) by reasonably could be imposed upon the assets of Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Subsidiaries by reason of such Non-U.S. Plan; and (iv) the financial statements of such Non-U.S. Parent Employee Plan that would materially increase the expense of maintaining (if any) accurately reflect such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Non-U.S. Plan’s Parent Balance Sheet Date, except as required in order to comply with Applicable Lawliabilities.
Appears in 2 contracts
Samples: Merger Agreement (Amryt Pharma PLC), Merger Agreement (Chiasma, Inc)
Employees and Employee Benefit Plans. (a) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has has, since January 1, 20112017, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 20152017, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the CodeCode and all contributions required to have been made by Parent or any of its Subsidiaries with respect to any benefit or compensation plan, program or other arrangement maintained by a Governmental Authority have been timely made. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 20152017, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) Neither Parent nor any of its Subsidiaries has any material current or projected liability for, and no Parent Employee Plan provides or promises, any material post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, or employee or individual independent contractor (including any former director, officer, employee or individual independent contractoremployee) of Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(e) There Neither Parent nor any of its Subsidiaries has been any obligation to gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 409A or 4999 of the Code.
(f) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, with respect to any Parent Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no amendment to, written interpretation of non-exempt prohibited transaction has occurred that has caused or announcement (whether or not written) by would reasonably be expected to cause Parent or any of its Affiliates relating to, Subsidiaries to incur any liability under ERISA or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable LawCode.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Employees and Employee Benefit Plans. (a) Neither Parent nor Section 3.13(a) of the Disclosure Schedule sets forth a true and complete list of each material Benefit Plan.
(b) None of the Company, any Subsidiary of its the Company or any ERISA Affiliates (nor any predecessor Affiliate of the Company or any such entity) sponsors, maintains, administers or contributes to (or Subsidiary has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or contributed to (or had any obligation or Liability of any sort, direct or indirect, contingent or otherwise) in the last six years to contribute to), or with respect to (i) any Benefit Plan or other benefit plan that is or was subject to Section 412 or 430 of the Code or Section 302 or Title IV of ERISA, including any (ii) a multiemployer plan, plan as defined in Section 3(37) or 4001(a)(3) of ERISA or the local equivalent thereof under applicable Laws, (iii) a multiple employer plan within the meaning of Section 4063 or 4064 of ERISA or Section 413 of the Code, or (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). None of the Benefit Plans provide any health or welfare benefits following retirement or termination of employment for any current or former employee of the Company or its Subsidiaries (or their spouses, dependents or beneficiaries), other than as required by COBRA or similar applicable Law.
(bc) Except as has not had and would not reasonably be expected to have, individually or result in the aggregate, a Parent Material Adverse Effectmaterial liability to Purchaser, each Parent Employee Benefit Plan complies in form and has been established, maintained and operated in accordance with its terms and applicable law, including ERISA and the Code. Each Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service upon which it may rely or has applied is entitled to rely upon an opinion letter issued to the Internal Revenue Service for plan provider regarding its qualified status under the Code and the tax-exempt status of its related trust, and, to the Company’s knowledge, no event has occurred or circumstances exist that has caused or could reasonably be expected to cause the loss of such qualification or tax-exempt status.
(d) Except as would not reasonably be expected to result in a letter within the applicable remedial amendment period material liability to Purchaser, (i) no proceeding related to any Benefit Plan has been instituted or such period has not expired andis pending or, to the knowledge of Parentthe Company, threatened against (A) such Benefit Plan (other than routine claims for benefits and appeals of such claims consistent with the terms of such Benefit Plans), (B) any trustee or fiduciaries thereof, (C) any of the assets of any trust of such Benefit Plan or (D) the Company or any of its Subsidiaries and (ii) no circumstances exist Benefit Plan is the subject of any filing under any voluntary or other correction program of any Governmental Authority.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, except as expressly provided by this Agreement, (i) entitle any current or former Business Employee to severance pay or compensation payments or any other benefits or rights, (ii) accelerate the time of payment, vesting or exercisability, or increase the amount of compensation or benefits due any such Business Employee, (iii) result in any funding (through a grantor trust or otherwise) of compensation or benefits under any Benefit Plan, or (iv) result in an “excess parachute payment” under Section 280G of the Code.
(f) As of the date of this Agreement, except as set forth in Section 3.13(e) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any Collective Bargaining Agreement under which Business Employees are covered, and there are no labor organizations, works councils, trade unions or other employee representatives representing, or, to the knowledge of the Company, purporting to represent or seeking to represent any current Business Employee.
(g) Except as would not reasonably be expected to result in a material liability to Purchaser, the Business or the Purchased Assets, (i) none of the Company or any of its Subsidiaries has breached or otherwise failed to comply with the provisions of any Collective Bargaining Agreement under which Business Employees are covered; (ii) there are no pending or, to the knowledge of the Company, threatened labor organizational campaigns, corporate campaigns, petitions, demands for recognition (including demands for works council recognition), applications or other unionization activities seeking recognition of a bargaining unit at the Company or any of its Subsidiaries; (iii) none of the Company or any of its Subsidiaries is suffering (and, for the past three years, none of the Company or any of its Subsidiaries has suffered) any labor dispute, any activity or proceeding by a labor union or representative thereof to organize any Business Employee or any picketing, lockouts, strikes, slowdowns, work stoppages, job actions or threats thereof by or with respect to any Business Employee, against or involving the Company or any of its Subsidiaries; (iv) there are no unfair labor practice charges, grievances, arbitrations or other complaints or union matters before the National Labor Relations Board or other labor board of Governmental Authority or works council disputes that would reasonably be expected to result in any affect the Business Employees; and (iv) there are no current or, to the knowledge of the Company, threatened strikes, slowdowns, lockouts, organized labor disputes or work stoppages by Business Employees, and no such letter being revoked strike, slowdown, lockout, organized labor dispute or not being reissued or a penalty under work stoppage has occurred within the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. two years preceding the date of this Agreement.
(h) Except as has not had and would not reasonably be expected to haveresult in a material liability to Purchaser, individually or with respect to the Business Employees, the Company and its Subsidiaries have complied in the aggregateall material respects with all applicable Laws relating to employment, a Parent Material Adverse Effectemployment practices, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) wages, hours, mandatory insurance, and other benefits, leaves of the Code absence, employee classification, immigration control, employee safety, bonuses and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 2015, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Lawconditions of employment, affirmative action, equal opportunity, plant closures and layoffs, workers’ compensation, unemployment insurance and labor relations, including ERISA laws relating to termination of employment and the Coderelating to job applicants and employee background checks. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), No legally effected material action, suit, investigation claim (or proceeding counterclaim), litigation, arbitration, or mediation, (including an auditany civil, criminal, administrative, investigative or appellate proceeding) that arises out of the current, former or potential employment or service relationship between the Company or any of its Subsidiaries and any Business Employee is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in has been threatened against the assessment of any excise taxes or penalties against Parent Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) Neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(e) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Employees and Employee Benefit Plans. (a) Section 4.20 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and each Company Employee Plan that is subject to ERISA. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year, and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 20112009, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Parent Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under any such Parent Company Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 20152013, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 20152013, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) With respect to each director, officer, employee or independent contractor (including each former director, officer, employee or independent contractor) of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Employee Plan or other compensation benefit or arrangement, individually or collectively, would reasonably be expected to result in the payment of any amount that would not be deductible under Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of the Company or any of its Subsidiaries for any tax incurred by such individual, including under Section 409A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Section 409A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
(k) No employee of the Company or any of its Subsidiaries is employed by the Company or any of its Subsidiaries outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Employees and Employee Benefit Plans. (a) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 20112009, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 20152013, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 20152013, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) Neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(e) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Employees and Employee Benefit Plans. (a) Section 5.16(a) of the Parent Disclosure Letter contains a correct and complete list identifying each material Parent Employee Plan and specifies whether such plan is a US Parent Employee Plan or an International Parent Employee Plan. For each material Parent Employee Plan, Parent has made available to the Company a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, if applicable, (A) the current prospectus or summary plan description and all summaries of material modifications and (B) the most recently prepared actuarial report and financial statements of such plan.
(b) Neither Parent nor any of its ERISA Affiliates has sponsored, maintained, contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent liability under, any Parent Employee Plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or is otherwise a defined benefit plan. Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or in the past six years contributed to (or had any obligation to contribute to), or has or is reasonably expected to have any plan subject to Title IV of ERISAdirect or indirect liability with respect to, including any multiemployer plan, as defined in Section 3(37) of ERISAMultiemployer Plan.
(bc) Each US Parent Employee Plan has been maintained in compliance in all material respects with its terms and with the requirements of Applicable Law, including ERISA and the Code. No events have occurred with respect to any Parent Employee Plan that could reasonably be expected to result in payment or assessment by or against Parent of any material amount of excise taxes under Applicable Law.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) will (i) entitle any current or former Parent Service Provider to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) enhance any benefits or accelerate the time of payment or vesting or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Parent Employee Plan that or otherwise, or (iii) limit or restrict the right of Parent or any of its Subsidiaries to merge, amend or terminate any Parent Employee Plan. There is intended no contract, plan or arrangement (written or otherwise) covering any current or former Parent Service Provider that, individually or collectively, would entitle such Parent Service Provider to be qualified under Section 401(aany tax gross-up or similar payment from Parent or any of its Subsidiaries.
(e) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 2015, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) Neither neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promisesprovides, any post-post- employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any directorcurrent or former Parent Service Provider (other than coverage (x) mandated by Applicable Law, officerincluding COBRA or (y) where the cost of coverage is borne solely by the Parent Service Provider).
(f) Except as would not reasonably be expected to have, employee individually or individual independent contractor in the aggregate, a Parent Material Adverse Effect, there is no action, suit, investigation, audit, proceeding or claim (or any basis therefore) (other than routine claims for benefits) pending against or involving, or, to the Knowledge of Parent, threatened against or involving any Parent Employee Plan before any arbitrator or any Governmental Authority, including the IRS or the Department of Labor. Parent and its Subsidiaries are, and have been since January 1, 2016, in compliance in all material respects with all Collective Bargaining Agreements, Contracts with current or former Parent Service Providers and Contracts with Governmental Authorities. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, neither Parent nor any of its Subsidiaries has been notified of any administrative procedure, including any former directoraudit or infraction notice, officerbefore the Ministry of Labor and Employment (Ministério do Trabalho e Emprego) or any administrative procedure, employee term of adjustment of conduct (termo de ajuste de conduta or individual independent contractortermo de compromisso – TAC), civil action filed by the Public Prosecutor Office of Labor Affairs (Ministério Público do Trabalho).
(g) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each International Parent Employee Plan (i) has been maintained in compliance in all respects with its terms and Applicable Law, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles. From and after the Closing Date, HoldCo and its Affiliates will receive the full benefit of any funds, accruals and reserves under the International Parent Employee Plans. No International Parent Employee Plan is a defined benefit pension plan.
(h) Neither Parent nor any of its Subsidiaries is or since January 1, 2016 has been party to or subject to, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement. There is no labor strike, slowdown, stoppage, picketing, interruption of work or lockout pending or, to the Knowledge of Parent, threatened against or affecting Parent or any of its Subsidiaries (Subsidiaries. To the Knowledge of Parent, the consent or consultation of, or the rendering of formal advice by, any labor or trade union, works council or other than coverage mandated by Applicable Law).
(e) There has been no amendment to, written interpretation of employee representative body is not required for Parent to enter into this Agreement or announcement (whether or not written) by Parent or to consummate any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Lawtransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Employees and Employee Benefit Plans. (a) Section 4.20 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and each Company Employee Plan that is subject to ERISA. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year, and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Parent Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under any such Parent Company Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 2015, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 2015, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) With respect to each director, officer, employee or independent contractor (including each former director, officer, employee or independent contractor) of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-post- employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-self- insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Employee Plan or other compensation benefit or arrangement, individually or collectively, would reasonably be expected to result in the payment of any amount that would not be deductible under Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Person for any tax incurred by such Person, including under Section 409A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Section 409A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
Appears in 1 contract
Samples: Merger Agreement
Employees and Employee Benefit Plans. (a) Section 5.16 of the Parent Disclosure Letter contains a correct and complete list identifying each material Parent Employee Plan and specifies whether such plan is a US Parent Employee Plan or an International Parent Employee Plan. For each material Parent Employee Plan, Parent has made available to the Company a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, if applicable, (A) the current prospectus or summary plan description and all summaries of material modifications and (B) the most recently prepared actuarial report and financial statements of such plan.
(b) Neither Parent nor any of its ERISA Affiliates has sponsored, maintained, contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent liability under, any Parent Employee Plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or is otherwise a defined benefit plan. Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or in the past six years contributed to (or had any obligation to contribute to), or has or is reasonably expected to have any plan subject to Title IV of ERISAdirect or indirect liability with respect to, including any multiemployer plan, as defined in Section 3(37) of ERISAMultiemployer Plan.
(bc) Each US Parent Employee Plan has been maintained in compliance in all material respects with its terms and with the requirements of Applicable Law, including ERISA and the Code. No events have occurred with respect to any Parent Employee Plan that could reasonably be expected to result in payment or assessment by or against Parent of any material amount of excise taxes under Applicable Law.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) will (i) entitle any current or former Parent Service Provider to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) enhance any benefits or accelerate the time of payment or vesting or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Parent Employee Plan that or otherwise, or (iii) limit or restrict the right of Parent or any of its Subsidiaries to merge, amend or terminate any Parent Employee Plan. There is intended no contract, plan or arrangement (written or otherwise) covering any current or former Parent Service Provider that, individually or collectively, would entitle such Parent Service Provider to be qualified under Section 401(aany tax gross-up or similar payment from Parent or any of its Subsidiaries.
(e) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 2015, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) Neither neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promisesprovides, any post-post- employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any directorcurrent or former Parent Service Provider (other than coverage (x) mandated by Applicable Law, officerincluding COBRA or (y) where the cost of coverage is borne solely by the Parent Service Provider).
(f) Except as would not reasonably be expected to have, employee individually or individual independent contractor in the aggregate, a Parent Material Adverse Effect, there is no action, suit, investigation, audit, proceeding or claim (or any basis therefore) (other than routine claims for benefits) pending against or involving, or, to the Knowledge of Parent, threatened against or involving any Parent Employee Plan before any arbitrator or any Governmental Authority, including the IRS or the Department of Labor. Parent and its Subsidiaries are, and have been since January 1, 2016, in compliance in all material respects with all Collective Bargaining Agreements, Contracts with current or former Parent Service Providers and Contracts with Governmental Authorities. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, neither Parent nor any of its Subsidiaries has been notified of any administrative procedure, including any former directoraudit or infraction notice, officerbefore the Ministry of Labor and Employment (Ministério do Trabalho e Emprego) or any administrative procedure, employee term of adjustment of conduct (termo de ajuste de conduta or individual independent contractortermo de compromisso – TAC), civil action filed by the Public Prosecutor Office of Labor Affairs (Ministério Público do Trabalho).
(g) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each International Parent Employee Plan (i) has been maintained in compliance in all respects with its terms and Applicable Law, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles. From and after the Closing Date, HoldCo and its Affiliates will receive the full benefit of any funds, accruals and reserves under the International Parent Employee Plans. No International Parent Employee Plan is a defined benefit pension plan.
(h) Neither Parent nor any of its Subsidiaries is or since January 1, 2016 has been party to or subject to, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement. There is no labor strike, slowdown, stoppage, picketing, interruption of work or lockout pending or, to the Knowledge of Parent, threatened against or affecting Parent or any of its Subsidiaries (Subsidiaries. To the Knowledge of Parent, the consent or consultation of, or the rendering of formal advice by, any labor or trade union, works council or other than coverage mandated by Applicable Law).
(e) There has been no amendment to, written interpretation of employee representative body is not required for Parent to enter into this Agreement or announcement (whether or not written) by Parent or to consummate any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Lawtransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement
Employees and Employee Benefit Plans. (a) Section 4.17(a) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, and (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority or the plan sponsor of any Multiemployer Plan during the past year.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1has, 2011during the last six years, sponsored, maintained, administered or contributed to (or had any obligation to contribute to)) or is reasonably expected to have any direct or indirect liability with respect to, any plan subject to Title IV of ERISA, including other than any multiemployer plan, as defined in Section 3(37) of ERISAMultiemployer Plan.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation.
(d) Section 4.17(d) of the Company Disclosure Schedule sets forth each Multiemployer Plan which the Company or any of its ERISA Affiliates (or any predecessor of any such entity) sponsors, maintains, contributes to or has any liability or contingent liability in respect of, or in the past six (6) years sponsored, maintained, contributed to or had any liability or contingent liability in respect of. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under neither the Company nor any of its ERISA Affiliates has incurred any liability on account of a “complete withdrawal” or a “partial withdrawal” (within the meaning of Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan and no circumstances exist that would reasonably be expected to give rise to any such Parent Employee Plan is exempt from tax under withdrawal or liability (including as a result of the transactions contemplated by this Agreement). As of the date of this Agreement, neither the Company nor any of its ERISA Affiliates has received notice, and the Company has no knowledge, of any Multiemployer Plan’s (i) failure to satisfy the minimum funding requirements of Section 501(a) 412 of the Code and has been so exempt since its creationor application for or receipt of a waiver of such minimum funding requirements, (ii) “endangered status” or “critical status” (within the meaning of Section 432 of the Code) or (iii) insolvency (within the meaning of Section 4245 of ERISA), reorganization (within the meaning of Section 4241 of ERISA) or proposed or, to the knowledge of the Company, threatened termination.
(ce) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 2015, each Parent Company Employee Plan (including any trust intended to be exempt from tax under Section 501 of the Code) has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent.
(f) Except as provided under this Agreement or pursuant to Applicable Law, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in each director, officer, or employee (including each former director, officer, or employee) of the assessment of any excise taxes or penalties against Parent Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event, (i) entitle any such individual to haveany payment or benefit, individually including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan, or (iii) result in the aggregate, a Parent Material Adverse Effectpayment of any “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(dg) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, or employee or individual independent contractor (including any former director, officer, employee or individual independent contractoremployee) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eh) There Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 409A or 4999 of the Code or other similar Applicable Law.
(i) With respect to any Company Employee Plan for the benefit of Company employees or dependents thereof who perform services or who are employed outside of the United States (a “Non-U.S. Plan”), except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) if required to have been approved by any non-U.S. Governmental Authority (or permitted to have been approved to obtain any beneficial Tax or other status), such Non-U.S. Plan has been so approved or timely submitted for approval; no amendment tosuch approval has been revoked (nor, written interpretation to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or announcement application therefor that is reasonably likely to affect any such approval or increase the costs relating thereto; (whether ii) if intended to be funded and/or book reserved, such Non-U.S. Plan is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions; (iii) no liability exists or not written) by Parent reasonably could be imposed upon the assets of the Company or any of its Affiliates relating toSubsidiaries by reason of such Non-U.S. Plan; and (iv) the financial statements of such Non-U.S. Plan (if any) accurately reflect such Non-U.S. Plan’s liabilities.
(j) On or prior to the date hereof, or making the Company has made available to Parent a change list of each Company Equity Award outstanding as of December 8, 2021 that includes (A) the number of shares of Company Common Stock underlying such Company Equity Award (assuming achievement of the applicable performance goals at the target level in employee participation or coverage underthe case of any such Company Equity Award that is a Company PSU Award), any Parent Employee Plan (B) the exercise price of each such Company Equity Award, if applicable, (C) the vesting schedule of each such Company Equity Award that would materially increase is unvested as of the expense date thereof and (D) the expiration date of maintaining each such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet DateCompany Equity Award, except as required in order to comply with Applicable Lawif applicable.
Appears in 1 contract
Employees and Employee Benefit Plans. (a) Section 4.20 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Employee Plan and each Employee Plan that is subject to ERISA. For each material Employee Plan and each Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Employee Plan, (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year and(vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, in the past six years sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on the Company, each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on the Company, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on the Company, since January 1, 20152010, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on the Company, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 20152010, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on the Company.
(de) Except as set forth in Section 4.20(e) of the Company Disclosure Schedule, with respect to each director, officer, employee or independent contractor (including each former director, officer, employee or independent contractor) of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Employee Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent, to merge, amend or terminate any Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) No Employee Plan or other compensation benefit or arrangement, individually or collectively, would reasonably be expected to result in the payment of any amount that would not be deductible under Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of the Company or any of its Subsidiaries for any tax incurred by such individual, including under Section 409A or 4999 of the Code.
(i) Each Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Section 409A of the Code in all material respects.
(j) With respect to any Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
Employees and Employee Benefit Plans. (a) Neither Parent Except as set forth on Section 5.20(a) of the Bank Disclosure Schedule, neither the Bank nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers Affiliate sponsors or contributes to (or has any obligation maintains and is not required to contribute to), or to and has since January 1, 2011, not during the preceding five (5) years sponsored, maintained, administered maintained or contributed to any Employee Benefit Plan. Except as disclosed in Section 5.20(a) of the Bank Disclosure Schedule:
(or had i) (A) Each Employee Benefit Plan and any obligation to contribute to), any plan subject to Title IV related funding arrangement is in compliance with all applicable requirements of ERISA, including the Code, and other applicable laws, and each Employee Benefit Plan has been administered in accordance with its written terms and applicable law; (B) all benefits due and payable under any multiemployer planEmployee Benefit Plan have been paid or are in the process of being paid in accordance with the terms of such Employee Benefit Plan; (C) the Bank and each ERISA Affiliate have timely made (and at the Effective Time will have timely made) all contributions and/or premiums required to be made to any Employee Benefit Plan; (D) there are no claims (except for claims for benefits in the ordinary course of plan administration), litigation, arbitration, government investigation or audit or other legal proceeding pending or, to the knowledge of the Bank or any ERISA Affiliate, threatened against or with respect to any Employee Benefit Plan and, to the knowledge of the Bank or any ERISA Affiliate, no facts exist which could give rise to such claims, litigation, arbitration, investigation, audit or other proceeding; (E) all reports, returns, forms, notifications or other disclosure materials required to be filed with any Governmental Entity or distributed to employees with respect to any Employee Benefit Plan have been timely filed or distributed and are accurate and complete; (F) no nonexempt “prohibited transaction” (as defined in Section 3(37) 4975 of the Code or Section 406 of ERISA) has occurred or will occur prior to the Effective Time with respect to any Employee Benefit Plan; (G) no excise Taxes or civil penalties are payable or will become payable prior to the Effective Time with respect to any Employee Benefit Plan; (H) neither the Bank nor any ERISA Affiliate is subject to any legal obligation to continue any Employee Benefit Plan after the Effective Time, nor would the Surviving Bank be subject to any such obligation; and (I) each Employee Benefit Plan may be amended or terminated without the consent of any employee, beneficiary or other party.
(bii) Except The Bank has previously delivered to Parent complete copies of each written Employee Benefit Plan (or a written summary of the material terms of any Employee Benefit Plan for which there is not a written plan document); all related summary plan descriptions and/or summaries furnished or made available to employees, officers and directors of the Bank or any ERISA Affiliate with respect to programs for which a summary plan description is not required; all related trust agreements or other funding arrangements, including, but not limited to, insurance policies; for the three (3) most recent plan years, all annual reports (5500 series) for each Employee Benefit Plan that have been filed with any Governmental Entity; all current registration statements on Form S-8 (or any other applicable registration form); and all other material documents relating to any Employee Benefit Plan as has not had and would not may reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent requested by Parent.
(iii) (A) Any Employee Plan that is Benefit Plans which are intended to be qualified under Section 401(a) of the Code (collectively, the “Qualified Plans”) are so qualified; (B) to the knowledge of the Bank and any ERISA Affiliate, nothing has occurred that could reasonably be expected to adversely affect the tax-qualified status of the Qualified Plans; (C) the Qualified Plans have been amended to comply with all currently applicable legislation (including any regulations issued thereunder), and have received a favorable determination letter or are the subject of an opinion letter from the Internal Revenue Service IRS with respect to their tax-qualified status which considers all such currently applicable legislation, or has applied to the Internal Revenue Service for such are still within a letter within the applicable remedial amendment period as announced by the IRS; (D) the Bank has delivered to Parent complete copies of the most recent determination and opinion letters previously received and all correspondence relating to the applications for the most recent determination letters with respect to the Qualified Plans currently in effect; and (E) the Bank has delivered to Parent documentation relating to the correction of any Qualified Plan defects under any governmental correction program or otherwise.
(iv) No Employee Benefit Plan is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, and no Employee Benefit Plan is a multiple employer plan under Code Section 413(c) or a “multiemployer plan” as defined in Section 3(37) of ERISA and the Bank has no liability for any such period has plans previously maintained or contributed to by the Bank or an ERISA Affiliate.
(v) The Bank and each ERISA Affiliate do not expired andhave any obligation, and have not made any representation, in connection with any medical, death or other welfare benefits for their employees or other service providers after they retire, except to the extent required under the group health plan continuation requirements of Sections 601 through 609 of ERISA, Section 4980B of the Code, or applicable state law.
(vi) Except as set forth in Section 5.20(a)(vi) of the Bank Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or in conjunction with another event, will (A) result in any payment (including, without limitation, severance, unemployment compensation and golden parachute payments) becoming due to any current or former director or employee of the Bank or any ERISA Affiliate under any Employee Benefit Plan or otherwise; (B) increase any benefits otherwise payable by the Bank or any ERISA Affiliate; (C) result in the acceleration of the time of payment or vesting of any such benefits under any Employee Benefit Plan or otherwise; or (D) result in any payments or benefits for which any deduction is disallowed or reduced under Sections 162(a)(1), 162(m) or 280G of the Code, as applicable.
(b) Except as set forth in Section 5.20(b) of the Bank Disclosure Schedule, there is no:
(i) collective bargaining agreement (a “CBA”) or any other agreement with any labor organization, union, group or association (“Labor Organization”) applicable to the employees of the Bank to which the Bank is a party to or bound;
(ii) unfair labor practice complaint pending or, to the knowledge Bank’s knowledge, threatened against the Bank before the National Labor Relations Board or any other federal, state local or foreign agency;
(iii) pending or, to the Bank’s knowledge, threatened or affecting the Bank, strike, slowdown, work stoppage, lockout or other collective labor action or dispute by or with respect to any employees of Parentthe Bank;
(iv) grievance, no circumstances exist that would reasonably be expected arbitration or unfair dismissal proceeding arising out of any CBA or other grievance procedure pending against the Bank;
(v) claim, audit, litigation, government investigation, administrative proceeding or arbitration against the Bank involving any matter related to result employment including, but not limited to, claims of discrimination, claims of unpaid wages, claims of violations of the Family and Medical Leave Act, claims of wrongful discharge, claims of unfair labor practices, workers’ compensation claims, unemployment claims and claims related to occupational safety and health law;
(vi) pending or, to the Bank’s knowledge, threatened representation question or union or labor organizing activities with respect to employees of the Bank;
(vii) written personnel policy, rule or procedure applicable to employees of the Bank;
(viii) individual employment agreement in any such letter being revoked form whatsoever including, but not limited to, any agreement for a term of employment, stock option agreement, stock purchase agreement, bonus agreement, or covenant not being reissued to compete; or
(ix) policy or a penalty under agreement in any form whatsoever which alters the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each trust created under any such Parent Employee Plan is exempt from tax under Section 501(a) at-will status of the Code and has been so exempt since its creationemployees of the Bank.
(c) Except as The Bank has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 2015, at all times properly classified each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 2015, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiariesrespective employees as employees and each of its independent contractors as independent contractors, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectas applicable.
(d) Neither Parent nor any The Bank has at all times properly classified each of its Subsidiaries has any current respective employees as exempt or projected liability for, and no Parent Employee Plan provides or promises, any postnon-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) exempt for purposes of Parent or any of its Subsidiaries (other than coverage mandated by Applicable Law)the Fair Labor Standards Act.
(e) There The Bank has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any at all times for each of its Affiliates relating torespective employees properly withheld and paid all applicable Taxes and all other withholdings required by law.
(f) The Bank has previously delivered to Parent a complete and accurate listing of each employee of the Bank along with the employee’s job title, or making a change in employee participation or coverage under2013 and 2014 annual salary, 2013 bonus and expected 2014 bonus, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Dateother 2013 and 2014 compensation, except as required in order to comply with Applicable Lawand current accrued leave.
Appears in 1 contract
Employees and Employee Benefit Plans. (a) Section 4.20 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and each Company Employee Plan that is subject to ERISA. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year, and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Parent Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under any such Parent Company Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 2015, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 2015, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) With respect to each director, officer, employee or independent contractor (including each former director, officer, employee or independent contractor) of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-post- employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Employee Plan or other compensation benefit or arrangement, individually or collectively, would reasonably be expected to result in the payment of any amount that would not be deductible under Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Person for any tax incurred by such Person, including under Section 409A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Section 409A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
Employees and Employee Benefit Plans. (a) Section 4.17 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and specifies whether each such Company Employee Plan is a Company U.S. Plan or a Company International Plan. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement; (ii) each summary plan description and summary of material modifications; (iii) the most recently filed IRS Forms 5500; (iv) the most recent favorable determination or opinion letter from the IRS; (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan; (vi) all material documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the IRS or any other Governmental Authority during the past year; and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 20112013, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service IRS or has applied to the Internal Revenue Service IRS for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service IRS Closing Agreement Program if discovered during an Internal Revenue Service IRS audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each trust created under any such Parent Company Employee Plan is exempt from tax Tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 20152018, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim Proceeding (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledgethe knowledge of the Company, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue ServiceIRS, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 20152018, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) Except as provided in Section 2.5, with respect to each current or former Company Service Provider, the consummation of the Transactions will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit; (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan; or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent or the Surviving Corporation to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee current or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries Company Service Provider (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Without limiting the generality of Section 4.17(f), no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or any of its Subsidiaries in connection with the Transactions (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former Company Service Provider for any tax incurred by such individual, including under Sections 409A, 457A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Sections 409A or 457A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Sections 409A and 457A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
(k) Each Company International Plan (i) has been maintained in compliance with its terms and Applicable Law, except for failures that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Employees and Employee Benefit Plans. (a) Section 5.17 of the Parent Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Parent Employee Plan, and specifies whether each such Parent Employee Plan is a Parent U.S. Plan or a Parent International Plan. For each material Parent Employee Plan and each Parent Employee Plan that is subject to ERISA, Parent has made available to the Company a copy of such plan (or a description, if such plan is not written) and all amendments thereto, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement; (ii) each summary plan description and summary of material modifications; (iii) the most recently filed IRS Forms 5500; (iv) the most recent favorable determination or opinion letter from the IRS; (v) the most recently prepared actuarial reports and financial statements in connection with each such Parent Employee Plan; (vi) all material documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the IRS or any other Governmental Authority during the past year; and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 20112013, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service IRS or has applied to the Internal Revenue Service IRS for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service IRS Closing Agreement Program if discovered during an Internal Revenue Service IRS audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each trust created under any such Parent Employee Plan is exempt from tax Tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 20152018, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim Proceeding (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to the knowledge of Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue ServiceIRS, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 20152018, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(de) With respect to each current or former Parent Service Provider, the consummation of the Transactions will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit; (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Parent Employee Plan; or (iii) limit or restrict the right of Parent or any of its Subsidiaries or, after the Closing, the Surviving Corporation to merge, amend or terminate any Parent Employee Plan.
(f) Neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee current or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries Service Provider (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Without limiting the generality of Section 5.17(f), no amount paid or payable (whether in cash, in property, or in the form of benefits) by Parent or any of its Subsidiaries in connection with the Transactions (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. Neither Parent nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former Parent Service Provider for any Tax incurred by such individual, including under Sections 409A, 457A or 4999 of the Code.
(i) Each Parent Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Sections 409A or 457A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and Parent and its Subsidiaries have complied in practice and operation with, all applicable requirements of Sections 409A and 457A of the Code in all material respects.
(j) With respect to any Parent Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause Parent or any of its Subsidiaries to incur any material liability under ERISA or the Code.
(k) Each Parent International Plan (i) has been maintained in compliance with its terms and Applicable Law, except for failures that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Employees and Employee Benefit Plans. (a) Section 4.17 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and specifies whether each such Company Employee Plan is a Company U.S. Plan or a Company International Plan. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement; (ii) each summary plan description and summary of material modifications; (iii) the most recently filed IRS Forms 5500; (iv) the most recent favorable determination or opinion letter from the IRS; (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan; (vi) all material documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the IRS or any other Governmental Authority during the past year; and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 20112013, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service IRS or has applied to the Internal Revenue Service IRS for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service IRS Closing Agreement Program if discovered during an Internal Revenue Service IRS audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each trust created under any such Parent Company Employee Plan is exempt from tax Tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 20152018, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim Proceeding (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s knowledgethe knowledge of the Company, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue ServiceIRS, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 20152018, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) Except as provided in Section 2.5, with respect to each current or former Company Service Provider, the consummation of the Transactions will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit; (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan; or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent or the Surviving Corporation to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee current or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries Company Service Provider (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Without limiting the generality of Section 4.17(f), no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or any of its Subsidiaries in connection with the Transactions (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former Company Service Provider for any tax incurred by such individual, including under Sections 409A, 457A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Sections 409A or 457A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Sections 409A and 457A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
(k) Each Company International Plan (i) has been maintained in compliance with its terms and Applicable Law, except for failures that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 1 contract
Samples: Merger Agreement (Mobile Mini Inc)
Employees and Employee Benefit Plans. (a) Section 5.17 of the Parent Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Parent Employee Plan, and specifies whether each such Parent Employee Plan is a Parent U.S. Plan or a Parent International Plan. For each material Parent Employee Plan and each Parent Employee Plan that is subject to ERISA, Parent has made available to the Company a copy of such plan (or a description, if such plan is not written) and all amendments thereto, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement; (ii) each summary plan description and summary of material modifications; (iii) the most recently filed IRS Forms 5500; (iv) the most recent favorable determination or opinion letter from the IRS; (v) the most recently prepared actuarial reports and financial statements in connection with each such Parent Employee Plan; (vi) all material documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the IRS or any other Governmental Authority during the past year; and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 20112013, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service IRS or has applied to the Internal Revenue Service IRS for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parent, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service IRS Closing Agreement Program if discovered during an Internal Revenue Service IRS audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each Each trust created under any such Parent Employee Plan is exempt from tax Tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, since January 1, 20152018, each Parent Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no claim Proceeding (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to the knowledge of Parent’s knowledge, is threatened against or reasonably expected to involve, any Parent Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue ServiceIRS, the Department of Labor or the PBGC. To the knowledge of Parent, since January 1, 20152018, no events have occurred with respect to any Parent Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(de) With respect to each current or former Parent Service Provider, the consummation of the Transactions will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit; (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Parent Employee Plan; or (iii) limit or restrict the right of Parent or any of its Subsidiaries or, after the Closing, the Surviving Corporation to merge, amend or terminate any Parent Employee Plan.
(f) Neither Parent nor any of its Subsidiaries has any current or projected liability for, and no Parent Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee current or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent or any of its Subsidiaries Service Provider (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Without limiting the generality of Section 5.17(f), no amount paid or payable (whether in cash, in property, or in the form of benefits) by Parent or any of its Subsidiaries in connection with the Transactions (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. Neither Parent nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former Parent Service Provider for any Tax incurred by such individual, including under Sections 409A, 457A or 4999 of the Code.
(i) Each Parent Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Sections 409A or 457A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and Parent and its Subsidiaries have complied in practice and operation with, all applicable requirements of Sections 409A and 457A of the Code in all material respects.
(j) With respect to any Parent Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause Parent or any of its Subsidiaries to incur any material liability under ERISA or the Code.
(k) Each Parent International Plan (i) has been maintained in compliance with its terms and Applicable Law, except for failures that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 1 contract
Samples: Merger Agreement (Mobile Mini Inc)
Employees and Employee Benefit Plans. (a) Section 4.20 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and each Company Employee Plan that is subject to ERISA. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of (if applicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year, and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1, 2011, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan, as defined in Section 3(37) of ERISA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Parent Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under any such Parent Company Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1, 2015, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parentthe Company’s knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1, 2015, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) With respect to each director, officer, employee or independent contractor (including each former director, officer, employee or independent contractor) of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-post- employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, employee or individual independent contractor (including any former director, officer, employee or individual independent contractor) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Employee Plan or other compensation benefit or arrangement, individually or collectively, would reasonably be expected to result in the payment of any amount that would not be deductible under Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Person for any tax incurred by such Person, including under Section 409A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Section 409A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code.
Appears in 1 contract
Samples: Merger Agreement (CVS HEALTH Corp)
Employees and Employee Benefit Plans. (a) Section 4.20 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of each material Company Employee Plan and each Company Employee Plan that is subject to ERISA. For each material Company Employee Plan and each Company Employee Plan that is subject to ERISA, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and material written interpretations thereof, together with a copy of(ifapplicable) (i) each trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan, (vi) all documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past year, and (vii) all current employee handbooks, manuals and policies.
(b) Neither Parent the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has since January 1I, 2011, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISAofERlSA, including any multiemployer plan, as defined in Section 3(37) of ERISAofERlSA.
(bc) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Parent Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or has applied to the Internal Revenue Service for such a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Parentthe Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each trust created under any such Parent Company Employee Plan is exempt from tax under Section 501(a501 (a) of the Code and has been so exempt since its creation.
(cd) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, since January 1I, 2015, each Parent Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, no claim (other than routine claims for benefits), action, suit, investigation or proceeding (including an audit) is pending against or involves or, to Parent’s the Company's knowledge, is threatened against or reasonably expected to involve, any Parent Company Employee Plan before any court or arbitrator or any Governmental Authority, including the Internal Revenue Service, the Department of Labor or the PBGC. To the knowledge of Parentthe Company, since January 1I, 2015, no events have occurred with respect to any Parent Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against Parent the Company or any of its Subsidiaries, except for events that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) With respect to each director, officer, employee or independent contractor (including each former director, officer, employee or independent contractor) of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent to merge, amend or terminate any Company Employee Plan.
(f) Neither Parent the Company nor any of its Subsidiaries has any current or projected liability for, and no Parent Company Employee Plan provides or promises, any post-post- employment or post-retirement medical, dental, disability, hospitalization, . life or similar benefits (whether insured or self-insured) to any director, . officer, . employee or individual independent contractor (including any former director, officer, . employee or individual independent contractor) of Parent the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(eg) There has been no amendment to, written interpretation of or announcement (whether or not written) by Parent the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Parent Company Employee Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Parent Company Balance Sheet Date, . except as required in order to comply with Applicable Law.
(h) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Employee Plan or other compensation benefit or arrangement, individually or collectively. would reasonably be expected to result in the payment of any amount that would not be deductible under Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up. indemnify or otherwise reimburse any Person for any tax incurred by such Person. including under Section 409 A or 4999 of the Code.
(i) Each Company Employee Plan, and any award thereunder, that is or forms part of a "nonqualified deferred compensation plan" within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable requirements of Section 409A of the Code in all material respects.
(j) With respect to any Company Employee Plan covered by Subtitle 8, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERlSA or the Code.
Appears in 1 contract
Samples: Merger Agreement
