Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1) lists each employment, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice of the Companies which are maintained solely for the benefit of their former and current Employees, including, without limitation, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companies. (b) No Employee Benefit Plan is an "employee pension benefit plan" under Section 3(2) of ERISA. (c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informal, (i) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Plan. (d) Except as set forth in Schedule 3.13(d), the Employee Benefit Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. (e) None of the Employee Benefit Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607. (f) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing. (g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements. (h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Insignia Financial Group Inc /De/), Purchase and Sale Agreement (New Valley Corp)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1Section 4.18(a) lists each employment, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice of the Companies which are maintained solely for the benefit of their former Company Disclosure Schedule sets forth a true and current Employees, including, without limitation, all applicable "employee benefit plans" complete list as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesdate of this Agreement of each material Company Employee Plan that covers employees of the Company and its Subsidiaries working in the United States (each, a “U.S. Company Employee Plan”) and each U.S. Company Employee Plan that is subject to ERISA. For each material U.S. Company Employee Plan and each U.S. 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 U.S. 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) No Employee Benefit Plan is an "employee pension benefit Neither 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, 2017, 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" under , as defined in Section 3(23(37) of ERISA.
(c) Except as otherwise required by Legal Requirementshas not had and would not reasonably be expected to have, none individually or in the aggregate, a Company Material Adverse Effect, each Company Employee Plan that is intended to be qualified under Section 401(a) of the Companies have 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 the Company, no circumstances exist that would reasonably be expected to result in any commitmentsuch 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, whether formal individually or informalin the aggregate, (ia Company Material Adverse Effect, each trust created under any such Company Employee Plan is exempt from tax under Section 501(a) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Planthe Code and has been so exempt since its creation.
(d) Except as set forth has not had and would not reasonably be expected to have, individually or in Schedule 3.13(dthe aggregate, a Company Material Adverse Effect, since January 1, 2017, each Company Employee Plan has been maintained in compliance with its terms and all Applicable Law, including ERISA and the Code, and all contributions required to have been made by the Company 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 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 the Company’s knowledge, is threatened against or reasonably expected to involve, any Company Employee Benefit Plans have been operated in compliancePlan before any Governmental Authority, in all material respectsincluding the Internal Revenue Service, with their terms and with applicable Legal Requirementsthe Department of Labor or the PBGC. To the extent knowledge of the Company, since January 1, 2017, no events have occurred with respect to any Company Employee Plan that would reasonably be expected to result in the Companies assessment of any excise taxes or penalties against the Buyer could Company or any of its Subsidiaries, except for events that have liability following not had and would not reasonably be expected to have, individually or in the Closingaggregate, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirementsa Company Material Adverse Effect.
(e) None Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, with respect to each director, officer, or employee (including each former director, officer, or employee) of the Employee Benefit Plans which are "welfare benefit plans," within Company or any of its Subsidiaries, the meaning consummation of Section 3(1the 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 ERISAcompensation or benefits under, provide for continuing benefits or coverage increase the amount payable or trigger any other obligation under, any Company Employee Plan or (iii) contractually limit or restrict the right of the Company or any of its Subsidiaries or, after termination the Closing, Parent to merge, amend or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607terminate any material Company Employee Plan.
(f) None Neither the Company nor any of its Subsidiaries has any material current or projected liability for, and no Company 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 (including any former director, officer, or employee) of the Companies nor Company or any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closingits Subsidiaries (other than coverage mandated by Applicable Law).
(g) The Companies have paid Neither the Company nor any of its Subsidiaries has any obligation to their respective Employees gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 409A or 4999 of the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial StatementsCode.
(h) Except as may has not had and would not reasonably be required expected to have, individually or in the aggregate, a Company Material Adverse Effect, with respect to any Company Employee Plan covered by applicable lawSubtitle B, neither Part 4 of Title I of ERISA or Section 4975 of the Companies is obligated Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to pay cause the Company or any unused sick leave of its Subsidiaries to incur any employees upon termination of their employment with liability under ERISA or the CompaniesCode.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1 Section 4.17(a) lists of the Company Disclosure Letter sets forth a complete list, as of the date hereof, of each employmentmaterial Plan (excluding individual equity award agreements evidencing the grant of any Company Equity Awards and individual employment offer letters that are on the form award agreements and form employment offer letters set forth on Section 4.17(a) of the Company Disclosure Letter). With respect to each material Plan, servicethe Company has provided to Parent or its counsel a true and complete copy, severanceto the extent applicable, change of: (i) each writing constituting a part of such Plan and all amendments thereto, or a written description of any material unwritten Plan; (ii) the most recent annual report and accompanying schedules; (iii) the current summary plan description and any summaries of material modifications; (iv) the most recent annual financial statements and actuarial reports; (v) the most recent determination or opinion letter received by any of the Acquired Companies from the IRS regarding the tax‑qualified status of such Plan; (vi) the most recent written results of all required compliance testing; and (vii) copies of any material correspondence with the IRS, Department of Labor or other Governmental Authority.
(b) Each Plan (and each related trust, insurance contract or fund) has been established, administered and funded in accordance with its express terms, and in compliance in all material respects with all applicable Laws, including ERISA and the Code. There are no pending or, to the Knowledge of the Company, threatened actions, claims or lawsuits against or relating to the Plans, the assets of any of the trusts under such Plans or the plan sponsor or the plan administrator, or against any fiduciary of the Plans with respect to the operation of such Plans (other than routine benefits claims, appeals of such claims and domestic relations order proceedings). Neither the Acquired Companies nor, to the Knowledge of the Company, any “party in interest” or “disqualified person” with respect to a Plan has engaged in a nonexempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA. To the Knowledge of the Company, (i) no fiduciary (within the meaning of Section 3(21) of ERISA) has breached any fiduciary duty with respect to a Plan or otherwise has any liability in connection with acts taken (or the failure to act) with respect to the administration or investment of the assets of any Plan, and (ii) no Plan is presently under audit or examination (nor has written notice been received of a potential audit or examination) by any Governmental Authority. All payments required to be made by any of the Acquired Companies under, or with respect to, any Plan (including all contributions, distributions, reimbursements, premium payments or intercompany charges) with respect to all prior periods have been timely made or, for any such payments that are not yet due, properly accrued and reflected in the most recent consolidated balance sheet prior to the date hereof, in each case in accordance with the provisions of each of the Plans, applicable Law and GAAP. To the Knowledge of the Company, there is not now, nor do any circumstances exist that could reasonably be expected to give rise to, any requirement for the posting of security with respect to a Plan or the imposition of any Lien on the assets of any of the Acquired Companies under ERISA or the Code.
(c) With respect to each Plan that is intended to qualify under Section 401(a) of the Code, such Plan, and its related trust, is so qualified and has received a current determination letter (or is the subject of a current opinion letter in the case of any prototype plan) from the IRS on which the Acquired Companies can rely that it is so qualified, and nothing has occurred with respect to the operation of any such plan which could cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code. No stock or other securities issued by any of the Acquired Companies forms or has formed any part of the assets of any Plan that is intended to qualify under Section 401(a) of the Code.
(d) No Plan is, and none of the Acquired Companies or any ERISA Affiliate of the Acquired Companies has ever sponsored, established, maintained, contributed to or been required to contribute to, or in any way has any liability (whether on account of an ERISA Affiliate or otherwise), directly or indirectly, with respect to any plan that is, (i) subject to Title IV or Section 302 of ERISA or Section 412, 430 or 4971 of the Code or a “defined benefit” plan within the meaning of Section 414(j) of the Code or Section 3(35) of ERISA (whether or not subject thereto), (ii) a Multiemployer Plan, (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, non-compete and consulting agreement between any Employeewithin the meaning of Section 4063 of ERISA, director, consultant(iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), or independent contractor (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. None of the Acquired Companies or any ERISA Affiliate has withdrawn at any time within the preceding six years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to any of the Acquired Companies.
(e) Each Plan that is subject to the Affordable Care Act has been established, maintained and administered in compliance with the requirements of the Affordable Care Act, including all notice and coverage requirements, and the Acquired Companies and each ERISA Affiliate offer minimum essential health coverage, satisfying the affordability and minimum value requirements, to their full‑time employees (as defined by the "Employee Agreements"Affordable Care Act) sufficient to prevent liability for assessable payments under Section 4980H of the Code. None of the Acquired Companies has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Plan. None of the Plans provide, and none of the Acquired Companies has any current or potential obligation to provide, medical, health, life or other welfare benefits after the termination of a Company Service Provider’s employment or engagement, as applicable, except as may be required by Section 4980B of the Code, any other applicable Law or at the sole expense of the participant or the participant’s beneficiary. None of the Acquired Companies has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable, or under Section 4980B, 4980D or 4980H of the Code.
(f) Except as set forth in Section 4.17(f) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any Company Service Provider or with respect to any Plan; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits, or the forgiveness of indebtedness of any Company Service Provider; or (iv) result in an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under any Plan.
(g) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) result in any payment or benefit (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G‑1) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(h) Each Plan that is, in whole or in part, a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has at all times been operated in operational and documentary compliance in all material respects with Section 409A of the Code and applicable guidance thereunder. Schedule 3.13(a)(2Neither the Company nor any of its Subsidiaries has any obligation to “gross‑up” or otherwise indemnify any Company Service Provider for the imposition of Tax, including under Section 4999 or 409A of the Code.
(i) describes No Plan covers any Company Service Providers residing or working outside of the United States.
(j) Section 4.17(j) of the Company Disclosure Letter contains a true and accurate list of each individual who is employed by, or is actively providing services to, the Acquired Companies as of the date hereof, together with such individual’s title or position, employing entity, work location, full-time or part-time status, accrued vacation, date of hire, current rate of hourly wage or salary, and annual target cash bonus opportunity.
(k) The Acquired Companies are and have been in compliance in the past five (5) years in all bonusmaterial respects with all applicable Laws relating to employment or the engagement of labor, deferred including all applicable Laws relating to wages, hours, overtime, collective bargaining, employment discrimination, civil rights, safety and health, workers’ compensation, stock optionpay equity, stock appreciation rightclassification of employees and independent contractors, vacation and other agreements or fringe benefit plan, arrangement or practice the collection and payment of withholding and/or social security Taxes. Each of the Acquired Companies meets in all material respects all requirements required by Law or regulation relating to the employment of foreign citizens, including all requirements of Form I-9 Employment Verification, and none of the Acquired Companies currently employs any Person who was not permitted to work in the jurisdiction in which are maintained solely such Person was employed. The Acquired Companies is in compliance in all material respects with all Laws that could require overtime to be paid to any Company Service Provider, and no Person has brought in the past five (5) years or, to the Knowledge of the Company, threatened to bring a claim for unpaid compensation or employee benefits, including overtime amounts. Any Company Service Provider who is not treated as an employee by the benefit of their former and current EmployeesAcquired Companies is not an employee under applicable Laws or for any other purpose, including, without limitation, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former for Tax withholding purposes or current Employees Plan purposes, and none of the CompaniesAcquired Companies has any liability by reason of any Company Service Provider, in any capacity, being improperly excluded from participating in any Plan.
(bl) No Employee Benefit Plan None of the Acquired Companies is an "employee pension benefit plan" under Section 3(2) delinquent in payment to any Company Service Provider for any wages, fees, salaries, commissions, bonuses, or other direct compensation for service performed by them or amounts required to be reimbursed to such Company Service Provider or in payments owed upon any termination of ERISAsuch Company Service Provider’s employment or engagement.
(cm) Except as otherwise required by Legal Requirements, none None of the Acquired Companies have is a party to or otherwise bound by any commitmentcollective bargaining agreement or other agreement with a labor union, whether formal works council or informalsimilar employee or labor organization applicable to any Company Service Provider and, to the Knowledge of the Company, there are no activities or proceedings of any labor union, works council or similar employee or labor organization to organize any such Company Service Providers. Additionally, (i) there is no unfair labor practice charge, claim, petition, or complaint pending before any applicable Governmental Authority relating to create the Acquired Companies or any additional Employee Benefit Plan; Company Service Provider and (ii) there is no labor strike, material slowdown, material dispute, or material work stoppage or lockout pending or, to the Knowledge of the Company, threatened against or affecting any of the Acquired Companies, and none of the Acquired Companies has experienced in the past five (5) years any strike, material slowdown or material work stoppage, lockout or other collective labor action by or with respect to any Company Service Providers.
(n) To the Knowledge of the Company, no current Company Service Provider with an annual base salary above $150,000 intends to terminate his, her or their employment or engagement with the Acquired Companies, and no Acquired Company has a present intention to terminate the employment or engagement of such Company Service Providers, other than any intent to terminate employment or engagement pursuant to the TechCo Reorganization.
(o) During the past five (5) years (i) no allegations of workplace sexual harassment or illegal retaliation or discrimination have been made known to the Acquired Companies, initiated, filed or, to the Knowledge of the Company, threatened against the Acquired Companies or any director or officer of the Company, (ii) to modify the Knowledge of the Company, no incidents of any such workplace sexual harassment or change illegal retaliation or discrimination have occurred, and (iii) none of the Acquired Companies has entered into any Employee Benefit Plansettlement agreement related to allegations of sexual harassment or illegal retaliation or discrimination by any Company Service Provider.
(p) In the past six (6) years, neither the Company nor any of its Subsidiaries has: (i) implemented any plant closing or mass layoffs implicating WARN; or (iiiii) to maintain for incurred any period of time any Employee Benefit Plan.
(d) Except as set forth in Schedule 3.13(d), the Employee Benefit Plans liability under WARN that remains unsatisfied. No plant closings or mass layoffs implicating WARN are currently planned or have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirementsannounced.
(e) None of the Employee Benefit Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.
Appears in 2 contracts
Samples: Merger Agreement (Doma Holdings, Inc.), Merger Agreement (Doma Holdings, Inc.)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(13.13(a) lists each employment, service, severance, change in control, non-compete sets forth a complete and consulting agreement accurate list of all employment agreements between the Company or any Employee, director, consultant, or independent contractor of its Subsidiaries and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice employees of the Companies which are maintained solely Company or any of its Subsidiaries. Except for the benefit of their former and current Employees, including, without limitationemployees who are parties to such employment agreements, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesemployees of the Company and each of its Subsidiaries are employed on an at-will basis (except for restrictions or limitations on the at-will basis of such employees imposed by law or equity or general principles of law or equity).
(b) No Schedule 3.13(b) sets forth a complete and accurate list of all Employee Benefit Plan is an Plans and all material Benefit Arrangements which cover Employees of the Company or any of its Subsidiaries with respect to their employment relationship with the Company or any of its Subsidiaries (the "employee pension benefit plan" under Section 3(2Company Plans"). With respect to each Company Plan, the Company has made available to Buyer true and complete copies of: (i) of ERISAthe plans and related trust documents and amendments thereto, (ii) the most recent summary plan descriptions, if any, and the most recent annual report, if any, and (iii) the most recent actuarial valuation (to the extent applicable).
(c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informalWith respect to each Company Plan, (i) to create any additional Employee Benefit Plan; the Company and each of its Subsidiaries is in compliance in all material respects with the terms of each Company Plan and with the requirements prescribed by all applicable statutes, orders or governmental rules or regulations, (ii) the Company and each of its Subsidiaries has contributed to modify or change any Employee Benefit Plan; or each Pension Plan included in the Company Plans not less than the amounts accrued for such plan for all plan periods for which payment is due, (iii) none of the Company or any of its Subsidiaries has any funding commitment or other accrued liabilities except as set forth on Schedule 3.13(c) or as reserved for in the financial statements in or incorporated by reference into the Company Reports, and (iv) there are and have been no prohibited transactions involving any Company Plan and in the case of each of clauses (i), (ii), (iii) and (iv), except for such matters as would not, individually or in the aggregate, reasonably be expected to maintain for any period of time any Employee Benefit Planresult in a Material Adverse Effect.
(d) Except as set forth in on Schedule 3.13(d), none of the Company or any of its Subsidiaries has made any commitment to establish any new Employee Benefit Plans have Plan, to modify any Employee Benefit Plan, or to increase benefits or compensation of Employees of the Company or any of its Subsidiaries (except for normal increases in compensation consistent with past practices), and to the Company's knowledge, no intention to do so has been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To communicated to Employees of the extent that the Companies Company or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirementsany of its Subsidiaries.
(e) None There are no pending or, to the Company's knowledge, anticipated claims (excluding claims for benefits incurred in the ordinary course of Company Plan activities) against or otherwise involving any of the Employee Benefit Company Plans which are "welfare benefit plans," within or any fiduciaries thereof with respect to their duties to the meaning Company Plans and no suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of Section 3(1Company Plan activities) of ERISA, provide for continuing benefits has been brought against or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607with respect to any such Company Plans.
(f) None Neither the Company nor any of the Companies nor ERISA Affiliates has, at any Seller Party maintains time after September 25, 1980, contributed to, or contributes or ever has maintained or contributed been required to contribute to, any "employee pension benefit multiemployer plan" that is subject to Title IV (as defined in Sections 3(37) and 4001(a)(3) of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the ClosingERISA).
(g) The Companies have paid Except as required by the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or requirements of state law and regulations and except as set forth on Schedule 3.13(g), the Company and its Subsidiaries do not maintain or contribute to their respective Employees the "year end" bonuses attributable any plan or arrangement which provides or has any liability to such Employees performance during fiscal year 2002provide life insurance, medical or other employee welfare benefits described in an aggregate amount equal Section 3(l) of ERISA to any Employee or former Employee following his retirement or termination of employment and, to the amount accrued for 2002 accrued incentives on Company's knowledge, the 2002 Financial StatementsCompany and its Subsidiaries have never represented, promised or contracted (whether in oral or written form) to any Employee or former Employee that such benefits would be provided.
(h) Except For purposes hereof, "Employee Benefit Plans" means each and all "employee benefit plans" as may be required defined in Section 3(3) of ERISA maintained or contributed to by applicable lawthe Company or a Subsidiary or in which the Company or a Subsidiary participates or participated and which provides benefits to Employees, neither including (i) any such plans that are "employee welfare benefit plans" as defined in Section 3(l) of ERISA, including retiree medical and life insurance plans ("Welfare Plans"), and (ii) any such plans that constitute "employee pension benefit plans" as defined in Section 3(2) of ERISA ("Pension Plans"). "Benefit Arrangements" means life and health insurance, hospitalization, savings, bonus, deferred compensation, incentive compensation, holiday, vacation, severance pay, sick pay, sick leave, disability, tuition refund, service award, company car, scholarship, relocation, patent award, fringe benefit, individual employment, consultancy or severance contracts and other polices or practices of the Companies is obligated Company or a Subsidiary providing employee or executive compensation or benefits to pay Employees maintained or contributed to by the Company or a Subsidiary, other than Employee Benefit Plans. "Employees" mean all current employees, former employees and retired employees of the Company or any unused sick of its Subsidiaries, including employees on disability, layoff or leave to status. "Controlled Group Liability" means any employees upon termination and all liabilities (other than such liabilities that arise solely out of, or relate solely to, the Company Plans) of their employment with the CompaniesERISA Affiliates (other than the Company and its Subsidiaries) under (i) Title IV of ERISA, (ii) Section 302 of ERISA, (iii) Sections 412 and 4971 of the Code, (iv) the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, and (v) corresponding or similar provisions of foreign laws or regulations.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Prometheus Assisted Living LLC), Stock Purchase Agreement (Arv Assisted Living Inc)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1Section 4.10(a) lists of the Company Disclosure Letter sets forth a complete and correct list of each employmentmaterial Company Benefit Plan. With respect to each material Company Benefit Plan, servicea copy of each of the following documents, severanceand all material amendments and modifications to such documents, change has been made available to Parent, to the extent applicable: (i) the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in controlwriting, non-compete a written description of the material terms thereof, (ii) the most recent annual report (Form 5500) filed with the U.S. Internal Revenue Service (“IRS”), (iii) the current summary plan description and consulting agreement between any Employeesummaries of material modifications, director(iv) the most recently received IRS determination or opinion letter relating to such Company Benefit Plan, consultant(v) the most recent actuarial report and/or financial statement relating to such Company Benefit Plan, (vi) nondiscrimination and coverage testing performed under the Code for the most recently completed year, (vii) copies of material notices, letters, or independent contractor other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and the Companies Human Services, Pension Benefit Guaranty Corporation, or other Governmental Authority relating to such Company Benefit Plan and (the "Employee Agreements"). Schedule 3.13(a)(2viii) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other any related trust agreements or fringe benefit planother funding arrangements, arrangement custodial agreements or practice of the Companies which are maintained solely for the benefit of their former and current Employees, including, without limitation, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesinsurance policies.
(b) No Employee Except as, individually or in the aggregate, would not reasonably be expected to be give rise to material Liability to the Company or its Subsidiaries: (i) all Company Benefit Plan is an "employee pension benefit plan" under Plans comply and have been established, maintained, funded, operated, and administered in accordance with their terms and the requirements of all Laws applicable thereto; (ii) there are no actions, audits, investigations, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened, involving any Company Benefit Plan; and (iii) there have been no non-exempt “prohibited transactions” within the meaning of Section 3(2) 4975 of ERISAthe Code or Section 406 or 407 of ERISA with respect to any Company Benefit Plan.
(c) Except as otherwise required by Legal Requirementsas, none individually or in the aggregate, would not reasonably be expected to be give rise to material Liability to the Company or its Subsidiaries, each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Companies have any commitmentCode is the subject of a current favorable determination letter from the IRS or was established by adoption of a preapproved plan that is the subject of a current favorable opinion letter from the IRS upon which the Company is permitted to rely, whether formal and there are no existing circumstances or informal, (i) events that would reasonably be expected to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period adversely affect the qualified status of time any Employee each such Company Benefit Plan.
(d) Except as set forth in Schedule 3.13(d)Neither the Company nor any of its Subsidiaries has any Liability, or is reasonably expected to have any, Liability under Title IV of ERISA, including on account of at any time being considered a single employer under Section 414 of the Employee Benefit Plans have been operated in compliance, in all material respects, Code with their terms and with applicable Legal Requirementsany other Person. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements.
(e) None of the Employee Company Benefit Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA and neither the Company nor any of its Subsidiaries has any Liability with respect to (i) a Multiemployer Plan, (ii) a Multiple Employer Plan or (iii) a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA). Except as set forth in Section 4.10(d) of the minimum Company Disclosure Letter, no Company Benefit Plan provides for medical or death benefits beyond termination of service, other than pursuant to Consolidated Omnibus Budget Reconciliation Act of 1985, as set forth in Section 4980B of the Code and Part 6 of Title I of ERISA. No Company Benefit Plan that provides health benefits is self-funded.
(e) Except as set forth in Section 4.10(e) of the Company Disclosure Letter, none of the execution, delivery and performance of this Agreement by the Company and the consummation of the Transactions will not (alone or in combination with any other event): (i) except as expressly provided under this Agreement or required by applicable Law, entitle any current or former employee, officer, director or consultant of the Company or any of its Subsidiaries to any severance pay or benefit or result in any compensation or benefit becoming due, or accelerate the time of payment or vesting of such compensation or benefits, or increase the amount of any compensation or benefits due to any such employee, officer, director or consultant, (ii) trigger any funding standards obligation under any Company Benefit Plan, (iii) result in any compensation or benefit (including vesting) to any “disqualified individual” (within the meaning of Section 412 280G of the IRC Code) that would reasonably be expected to, individually or in combination with any other compensation, constitute an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code). No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company or any of its Subsidiaries as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(f) Except as, individually or in the aggregate, would not reasonably be expected to be give rise to material Liability to the extent Company or its Subsidiaries, all Company Benefit Plans subject to the Laws of any jurisdiction outside of the United States (i) have been maintained in accordance with all applicable requirements, (ii) that Buyer or the Companies will have any liability following the Closingare intended to qualify for special tax treatment meet all requirements for such treatment, and (iii) that are intended to be funded and/or book-reserved are funded and/or book reserved, as required under applicable Laws and GAAP, based upon reasonable actuarial assumptions.
(g) The Companies have paid There are no labor unions, works councils, or other labor organizations representing any employees employed by the Company or any of its Subsidiaries. Except as would not reasonably be expected to their respective Employees have, individually or in the "year end" bonuses attributable to such Employees performance during fiscal year 2002aggregate, in an aggregate amount equal a Company Material Adverse Effect, since January 1, 2021 through the date hereof, there has not occurred and, to the amount accrued Knowledge of the Company, there is not threatened, (i) any labor strike, slowdown, picketing, or work stoppage by, or lockout of, or to the Knowledge of the Company, union organizing activities with respect to, any employees of the Company or any of its Subsidiaries, (ii) any Litigation against the Company or any of its Subsidiaries alleging labor relations or employment law violations filed by an employee or union with the National Labor Relations Board or the Equal Employment Opportunity Commission, or (iii) any application for 2002 accrued incentives on representation or certification of a labor union, works council, or other labor organization seeking to represent any employees of the 2002 Financial StatementsCompany or any of its Subsidiaries.
(h) Section 4.10(h)(i) of the Company Disclosure Letter contains a list of all Persons who are employees of the Company as of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such Person the following: (i) name, (ii) title or position (including whether full or part time) and whether classified as exempt or non-exempt for wage and hour purposes under applicable Law, (iii) hire date, (iv) current annual base compensation rate or hourly wage rate, as applicable, (v) commission, bonus, or other incentive-based compensation, (vi) amount of sick and vacation leave that is accrued and unused, and (vii) work location by city and state. Section 4.10(h)(ii) of the Company Disclosure Letter contains a list of all Persons who are engaged as independent contractors of the Company as of the date hereof, and sets forth for each such Person the following: (i) compensation, (ii) how such compensation is calculated (e.g., hourly rate, flat fee, etc.), (iii) a brief description of the nature of the services provided, (iv) the initial date of such Person’s engagement, and the end date of such Person’s engagement, if applicable, and (v) work location by city and state.
(i) Except as may be required by applicable law, neither set forth in Section 4.10(i) of the Companies Company Disclosure Letter, the employment of each employee of the Company is obligated “at will,” and can be terminated at any time without notice to pay the Company. Except as set forth in Section 4.10(i) of the Company Disclosure Letter, the Company is not a recipient of any unused sick leave outsourced or temporary labor from any third party or contracts with a professional employer organization or similar entity. No officer, director or management level employee of the Company has informed the Company of any plan to terminate employment, and, to the knowledge of the Company, no such Person has any employees upon termination of their plans to terminate employment with the CompaniesCompany. To the Knowledge of the Company, no employee is a party to or bound by any Contract that (i) could adversely affect the performance of his or her duties other than for the benefit of the Company, (ii) could adversely affect the ability of the Company to conduct its businesses, (iii) restricts or limits in any way the scope or type of work in which he or she may be engaged other than for the benefit of the Company, or (iv) requires him or her to transfer, assign or disclose information concerning his or her work to anyone other than the Company.
(j) The Company is and has been in compliance in all material respects with all applicable Laws pertaining to employment and employment practices, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration (including work visas and employment authorization), wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, plant closures and layoffs, affirmative action, pay transparency, pay equity, working conditions, meal and break periods, privacy, occupational health and safety, workers’ compensation, paid sick leave, leaves of absence, and unemployment insurance. All Persons characterized and treated by the Company as independent contractors or consultants satisfy (or satisfied) the requirements of applicable Laws to be treated as independent contractors, including wage Laws and no current or former independent contractor is (or was) entitled to be classified as an employee of the Company. No current or former independent contractor of the Company has made any claim, whether verbally or in writing, that they are (or were), or should be (or should have been) classified as, an employee of the Company. All current and former employees of the Company (as applicable) classified as exempt under the Fair Labor Standards Act and state and local wage and hour Laws are (or were) properly classified.
(k) The Company is currently, and at all times has been, in compliance in all material respects with the requirements of the Immigration Reform Control Act of 1986, including maintaining timely, accurate and complete Form I-9s with respect to each of their respective former and current employees as required by and in accordance with applicable Law concerning immigration and employment eligibility verification obligations. All employees who are performing services for the Company in the United States are legally permitted to work in the United States and will be legally permitted to work in the United States for the Company immediately following the consummation of the Transactions.
(l) There has been no Litigation against the Company and there is no Litigation pending, or to the Knowledge of the Company, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee or independent contractor of the Company, including any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, reasonable accommodation, disability rights or benefits, immigration, employee classification, child labor, privacy, workers’ compensation or workplace safety and insurance claims, paid sick leave, wage and hours or any other labor or employment related matter arising under applicable Laws.
(m) No allegations of discrimination, sexual harassment or misconduct in the course of being employed by, or providing services to, the Company have been made against (i) any employee of the Company holding a managerial position, or any current or former officer or director of the Company, or (ii) any other Company service provider who, directly or indirectly, supervises any other Company service provider. The Company has not entered into any settlement agreement or conducted any investigation related to allegations of sexual harassment or sexual misconduct by or regarding any employee or other Representative of the Company.
(n) In the past three years, the Company has not implemented or been involved in any “mass layoff”, “plant closing” or similarly defined conduct (as defined in the WARN Act). The Company has complied with the WARN Act, and it has no plans to undertake any action before the Closing Date that would trigger the WARN Act.
Appears in 2 contracts
Samples: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Employees and Employee Benefit Plans. (a) Section 4.17 of the Company Disclosure Schedule 3.13(a)(1sets 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, the Company has made available to Parent a copy of such plan (or a description, if such plan is not written, or a form materially consistent therewith, if such plan is an individual agreement) lists and all amendments thereto, together with a copy of (if applicable): (i) each employmenttrust, serviceinsurance or other funding arrangement, severance(ii) each summary plan description and summary of modifications, change in control(iii) the three most recent annual reports or similar reports (e.g., Internal Revenue Service Forms 5500) required to be filed with, delivered to or received by any Governmental Authority, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, HM Revenue and Customs or like Governmental Authority, (v) all non-compete discrimination tests for each Company Employee Plan for the three most recent plan years, (vi) the most recently prepared actuarial reports and consulting agreement between financial statements in connection with each such Company Employee Plan and (vii) all material documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any Employeeother Governmental Authority since the Reference Date. The Company has made available to Parent a copy of the written terms of appointment or employment for each Senior Employee (including any amendments to them) and any material standard written terms of employment or engagement pursuant to which each group of employees, director, consultant, consultants or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice contractors of the Companies which Company and its Subsidiaries are maintained solely for the benefit of their former and current Employees, including, without limitation, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former employed or current Employees of the Companiesengaged.
(b) No Employee Benefit Plan is an "employee pension benefit Neither the Company, any Subsidiary of the Company, nor any of their ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has, during the last six years, sponsored, maintained, administered or contributed to (or had any obligation to contribute to), (i) any plan subject to Title IV of ERISA, (ii) any multiemployer plan" under , as defined in Section 3(23(37) of ERISA, (iii) any multiple employer plan or any other plan described in Section 413 of the Code, or (iv) any multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA). Neither the Company nor any of its Subsidiaries have in the last six years been an “associate” of or “connected” with an “employer” (within the meaning of the United Kingdom Pensions Act 2004), of an “occupational pension scheme” which is not a “money purchase scheme” (as such terms are defined in the United Kingdom Pension Schemes Act 1993), and neither the Company nor any of its Subsidiaries have at any time prior to the date of this Agreement been such an employer, or participated in or had any liability in relation to a defined benefit pension scheme in any jurisdiction outside of the United States.
(c) Except as otherwise required by Legal Requirementshas not had and would not reasonably be expected to have, none individually or in the aggregate, a Material Adverse Effect, each Company Employee Plan that is intended to be qualified under Section 401(a) of the Companies have Code has received a favorable determination letter or may rely on a favorable 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 the Company, no circumstances exist that would reasonably be expected to result in any commitmentsuch 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, whether formal individually or informalin the aggregate, (ia Material Adverse Effect, each trust created under any such Company Employee Plan is exempt from Tax under Section 501(a) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Planthe Code and has been so exempt since its creation.
(d) Except as set forth has not had and would not reasonably be expected to have, individually or in Schedule 3.13(d)the aggregate, a Material Adverse Effect, the Employee Benefit Plans have been operated Company has complied with all the requirements of Schedules 4 and 5 of ITEPA in compliancerespect of any Company Share Option that is intended to qualify as a CSOP Option or EMI Option, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirementsrespectively.
(e) None Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Company Employee Plan has been established and maintained in compliance with its terms and all Applicable Law, including ERISA, the Code, any applicable provisions of the Employee Benefit Plans which are "welfare benefit plansUnited Kingdom Pensions Act 2008 and United Kingdom laws prohibiting discrimination on the grounds of a protected characteristic (as set out in the United Kingdom Equality Act 2010). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) no “prohibited transaction," ” within the meaning of Section 3(1) 4975 of the Code or Sections 406 and 407 of ERISA, provide and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan, and (ii) neither the Company, any Subsidiary of the Company, nor any of their ERISA Affiliates is subject to any penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no Proceeding (other than routine claims for continuing benefits benefits) is pending against or coverage after termination involves or, to the Company’s knowledge, is threatened against or retirement from employmentreasonably expected to involve, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) any Company Employee Plan before any Governmental Authority, including the Internal Revenue Service, HM Revenue and ERISA Section 607Customs, the Department of Labor, the PBGC, the United Kingdom Pensions Ombudsman or the United Kingdom Pensions Regulator.
(f) None Except as provided under this Agreement or pursuant to Applicable Law, with respect to each director, officer, employee or independent contractor (including each former director, officer, employee, or independent contractor) of the Companies nor Company or any Seller Party maintains of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or contributes or ever has maintained or contributed together with any other event: (i) entitle any such individual to any "employee pension benefit plan" that is subject payment or benefit, including any bonus, retention, severance or retirement benefit, (ii) result in any forgiveness of indebtedness, (iii) 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, (iv) contractually limit or restrict the right to Title IV amend or terminate any Company Employee Plan, (v) result in the payment of ERISA or the minimum funding standards of any “excess parachute payment” (as defined in Section 412 280G(b)(1) of the IRC Code), or (vi) result in, or entitle any such person to, any change to the extent that Buyer terms and conditions on which they are employed or the Companies will have any liability following the Closingengaged.
(g) The Companies Neither the Company nor any of its Subsidiaries has any liability for, and no Company Employee Plan provides for 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 (including any former director, officer, or employee) of the Company or any of its Subsidiaries other than coverage mandated by Applicable Law (such as health care continuation coverage as required by Section 4980B of the Code or any similar state law or ERISA). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, all contributions and expenses due and payable by the Company or any of its Subsidiaries in respect of a Company Employee Plan have been paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statementsfull.
(h) Except as may be required by applicable lawNo United Kingdom-based employee or officer, neither and no former United Kingdom based employee or officer, of the Companies is obligated Company or any of its Subsidiaries has any entitlement (whether actual or contingent) to pay any unused sick leave rights which are not rights to any employees upon termination old-age, invalidity or survivors’ benefits (within the meaning of the EU Acquired Rights Directive 2001) arising as a result of a transfer of their employment to the Company or any of its Subsidiaries under either the United Kingdom Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) or its predecessor legislation.
(i) Any lump sum, gratuity or other like benefit payable in the event of the death in service of a United Kingdom-based employee or officer of the Company or any of its Subsidiaries is fully insured with an insurance company authorized under the CompaniesUnited Kingdom Financial Services and Markets Act 2000 with permission under Part 4A of that Act to effect and carry out contracts of long-term insurance.
(j) With respect to any Company Employee Plan for the benefit of the 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 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 such approval has been revoked (nor, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor that is reasonably likely to affect any such approval; (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; and (iii) no material liability exists or reasonably could be imposed upon the assets of the Company or any of its Subsidiaries by reason of such Non-U.S. Plan.
Appears in 2 contracts
Samples: Transaction Agreement (Exscientia PLC), Transaction Agreement (Recursion Pharmaceuticals, Inc.)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1) lists each employment, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice Section 4.17 of the Companies which are maintained solely for the benefit of their former Company Disclosure Schedule sets forth a true and current Employees, including, without limitation, all applicable "employee benefit plans" complete list as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesdate of this Agreement of each material Company Employee Plan. With respect to each material Company Employee Plan, the Company has made available to Parent, as applicable, (i) a copy of such plan and all amendments thereto (or where such Company Employee Plan has not been reduced to writing, a written summary of the material terms thereof); (ii) each trust, insurance or other funding arrangement; (iii) each summary plan description and summary of material modifications; (iv) the three most recently filed IRS Forms 5500; (v) the most recent favorable determination or opinion letter from the IRS; (vi) actuarial reports and financial statements with respect to the three most recently completed plan years; and (vii) all material notices, letters or other correspondence received from or provided to the Department of Labor, the PBGC, the IRS or any other Governmental Authority during the past year. No Company Employee Plan that is an employee stock ownership plan has borrowed money to purchase Company Common Stock for such plan.
(b) No Employee Benefit Plan is an "employee pension benefit Neither 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 in the past 6 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" under , as defined in Section 3(23(37) of ERISA.
(c) Except as otherwise required by Legal Requirements, none Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Companies have Code has received a favorable determination or opinion letter from the IRS and, to the Knowledge of the Company, no circumstances exist that would reasonably be expected to result in any commitment, whether formal or informal, (isuch letter being revoked. Each trust created under any such Company Employee Plan is exempt from Tax under Section 501(a) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Planthe Code and has been so exempt since its creation.
(d) Except as set forth on Section 4.17(d) of the Company Disclosure Schedule, neither the Company nor any of its ERISA Affiliates have (i) incurred or reasonably expects to incur, either directly or indirectly, any material liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the PBGC; (iii) withdrawn from any Company Employee Plan; (iv) engaged in Schedule 3.13(dany transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred taxes under Section 4971 of the Code with respect to any plan; or (vi) participated in a multiple employer welfare arrangement (MEWA), the Employee Benefit Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements.
(e) None Since January 1, 2021, each Company Employee Plan has been maintained in compliance in all material respects with its terms and all Applicable Law, including ERISA and the Code. No material Proceeding (other than routine claims for benefits) is pending against or, to the Knowledge of the Company, is threatened against any Company Employee Benefit Plans which are "welfare benefit plans," Plan before any court or any Governmental Authority, including the IRS, the Department of Labor or the PBGC. To the Knowledge of the Company, no events have occurred with respect to any Company Employee Plan that would reasonably be expected to result in the assessment of any excise taxes or penalties against the Company or any Company Subsidiary.
(f) Except as provided in set forth in Section 4.17(f) of the Company Disclosure Schedule, with respect to each current or former Company Service Provider, neither the execution of this Agreement nor the consummation of the Transactions will, either alone or together with any other event: (i) entitle any such individual to any payment or benefit, including any bonus, retention, change in control or severance 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 Company Subsidiary or, after the Closing, Parent or the Surviving Company to merge, amend or terminate any Company Employee Plan.
(g) Without limiting the generality of Section 4.17(f), and except as set forth in Section 4.17(g) of the Company Disclosure Schedule, no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or any Company Subsidiary 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 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None 280G of the Companies Code. Neither the Company nor any Seller Party maintains of its Subsidiaries has any obligation to gross-up, indemnify or contributes otherwise reimburse any current or ever has maintained former Company Service Provider for any Tax incurred by such individual, including under Sections 409A, 457A or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 4999 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial StatementsCode.
(h) Except as set forth on Section 4.17(h) of the Company Disclosure Schedule, no Company Employee Plan provides or has any obligation to provide retiree health, retiree life insurance or other retiree welfare benefits (“Retiree Benefits”) to any individual for any reason, and neither the Company nor any Company Subsidiary has any liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits (other than coverage mandated by Applicable Law). Any Company Employee Plan providing for Retiree Benefits may be required terminated after the Closing without material liabilities to the Parent, the Company or any of their Affiliates.
(i) There has been no amendment to, written interpretation of or announcement (whether or not written) by applicable lawthe Company or any of its Affiliates relating to, neither or making a change in employee participation or coverage under, any 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 Company Balance Sheet Date.
(j) Each Company Employee Plan that is subject to Section 409A of the Companies is obligated to pay any unused sick leave Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder.
(k) With respect to any employees upon termination Company Employee Plan covered by Subtitle B, Part 4 of their employment 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 Company Subsidiary to incur any material liability under ERISA or the Code.
(l) Each Non-US Company Employee Plan (i) has been maintained in material compliance with its terms and Applicable Law in all material respects, (ii) if intended to qualify for special tax treatment, meets all the Companiesrequirements 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 2 contracts
Samples: Merger Agreement (WillScot Mobile Mini Holdings Corp.), Merger Agreement (McGrath Rentcorp)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1The Disclosure Letter lists all employee benefit plans (as defined in Section 3(3) lists each employmentof the Employee Retirement Income Security Act of 1974, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies as amended (the "Employee AgreementsERISA"). Schedule 3.13(a)(2) describes and all bonus, deferred compensation, stock option, stock appreciation rightpurchase, vacation incentive, deferred compensation, supplemental retirement, severance and other agreements similar fringe or fringe employee benefit planplans, arrangement programs or practice of the Companies which are maintained solely arrangements, for the benefit of, or relating, to, any employee of the Business, (together, the "Employee Plans"), and a copy of each such Employee Plan has been provided to Purchaser.
(i) There has been no "prohibited transaction", as such term is defined in Section 406 of ERISA and Section 4975 of the Code, with respect to any Employee Plan, which could result in any material liability of the Seller; (ii) all Employee Plans are in compliance in all material respects with the requirements prescribed by any and all statutes (including ERISA and the Code), orders, or governmental rules and regulations currently in effect with respect thereto, and the Seller has performed all material obligations required to be performed by it under, and is not in any material respect in default under or violation of, any of the Employee Plans.
(c) The Seller does not have any stated plan or commitment to establish any new Employee Plan or modify any Employee Plan (except to the extent required by law or to conform any such Employee Plan to the requirements of any applicable law, or as required by this Agreement). Each such Employee Plan which is intended to qualify under Section 401(a) of the Code, has received (or an application has been filed to receive) a favorable determination letter from the Internal Revenue Service with respect to such qualification. To the Seller's knowledge, nothing has occurred since the date of the most recent such determination letter that would cause such Employee Plan to lose its ability to rely on such determination letter.
(d) No Employee Plan provides, or has any liability to provide, life insurance, medical or other employee welfare benefits to any employee upon his or her retirement or termination of employment for any reason, except as may be required by statute.
(e) Except as set forth in the Disclosure Letter, the Business does not have any employment contracts or consulting agreements currently in effect that are not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of proprietary information or assignment of inventions). A list of all employees, officers and consultants of the Business and their former current compensation (including salary, bonus or commission arrangements or other contingencies) has previously been delivered to Purchaser. To the knowledge of the Seller, no employee or consultant of the Business is in violation of any term of any employment contract, patent disclosure agreement, noncompetition agreement, or any other contract or agreement, or any restrictive covenant relating to the right of any such employee to be employed thereby, or to use trade secrets or proprietary information of others, and current Employeesthe employment of such employees does not subject Company to any liability.
(f) Except as set forth in the Disclosure Letter, the Seller, to the extent it relates to the Business, (i) is in material compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices, immigration or other laws governing the employment of foreign nationals, terms and conditions of employment and wages and hours, in each case, with respect to employees; (ii) has withheld all amounts required by law or by agreement to be withheld from the wages, salaries and other payments to employees; (iii) is not liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing; and (iv) is not liable for any payment to any trust or other fund or to any governmental or administrative authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice).
(g) To the extent it relates to the Business (i) no work stoppage or labor strike against the Seller is pending or, to the knowledge of the Seller, threatened; (ii) the Seller is not involved in or, to the knowledge of the Seller, threatened with, any labor dispute, grievance, or litigation relating to labor, safety or discrimination matters involving any employee, including, without limitation, all applicable "employee benefit plans" as defined by Section 3(3) charges of ERISA (unfair labor practices or discrimination complaints, which, if adversely determined, would, individually or in the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits aggregate, result in material liability to former or current Employees of the Companies.
(b) No Employee Benefit Plan is an "employee pension benefit plan" under Section 3(2) of ERISA.
(c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informal, (i) to create any additional Employee Benefit PlanSeller; (ii) to modify or change any Employee Benefit Plan; or (iii) the Seller, to maintain for its knowledge, has not engaged in any period of time any Employee Benefit Plan.
(d) Except as set forth in Schedule 3.13(d), the Employee Benefit Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements.
(e) None of the Employee Benefit Plans which are "welfare benefit plans," unfair labor practices within the meaning of Section 3(1) of ERISAthe National Labor Relations Act which would, provide for continuing benefits individually or coverage after termination in the aggregate, directly or retirement from employment, except for COBRA rights under indirectly result in a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC liability to the extent that Buyer Seller; and (iv) the Seller is not presently, nor has it been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and no collective bargaining agreement is being negotiated by the Companies will have any liability following the ClosingSeller.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.
Appears in 1 contract
Employees and Employee Benefit Plans. (a) Section 3.8(a) of the Company Disclosure Schedule 3.13(a)(1(i) lists contains an accurate and complete list of each employmentCompany Employee Plan. None of the Company or any Company Subsidiary has made any plan or commitment to (x) establish any new Company Employee Plan, service(y) modify any Company Employee Plan (except in the ordinary course of business, severance, change in control, non-compete and consulting agreement between to the extent required by law or to conform any Employee, director, consultantsuch Company Employee Plan to the requirements of any applicable law), or independent contractor and (z) enter into any Company Employee Plan, except, in each case, as could not reasonably be expected to result in a material Liability to the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements Company or fringe benefit plan, arrangement or practice any of the Companies which are maintained solely for the benefit of their former and current Employees, including, without limitation, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the CompaniesCompany Subsidiaries.
(b) No The Company has made available to Buyer, to the extent applicable, (i) for each written Company Employee Benefit Plan, correct and complete copies of all current documents embodying each such Company Employee Plan, including all amendments thereto and all related trust documents, (ii) for each unwritten Company Employee Plan, a written summary of the material terms, (iii) the most recent annual report (Form Series 5500 and all audit reports, schedules and financial statements attached thereto), if any, required under ERISA or the Code or by any other applicable legal requirement in connection with each Company Employee Plan, (iv) the most recent summary plan description together with each summary of any material modification thereto, if any, required under ERISA or by any other applicable Law with respect to each Company Employee Plan, and (v) all correspondence to or from any Governmental Entity from the past three years relating to any Company Employee Plan is an "employee pension benefit plan" under Section 3(2) related to matters involving a material Liability to the Company or any of ERISAthe Company Subsidiaries.
(c) Except as Each Company Employee Plan has been established, maintained, funded, and administered in all material respects in accordance with the terms of the applicable controlling documents and in material compliance with all applicable Laws. Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter from the IRS or is the subject of a favorable opinion letter from the IRS on the form of such Company Employee Plan, in either case, on which the Company can rely, and, to the Knowledge of the Company, there are no facts or circumstances that could be reasonably likely to adversely affect the qualified status of any such Company Employee Plan. No material “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. There are no actions, suits or claims pending or, to the Knowledge of the Company, threatened or could reasonably be expected to be commenced (other than routine undisputed claims for benefits) against any Company Employee Plan or against the assets of any Company Employee Plan. There are no audits, inquiries or proceedings pending or, to the Knowledge of the Company, threatened by the IRS, Department of Labor, or any other Governmental Entity with respect to any Company Employee Plan. Neither the Company nor any of the Company Subsidiaries is subject to any penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. The Company and the Company Subsidiaries have timely made all contributions and other payments required by Legal Requirements, none and due under the terms of the Companies have any commitment, whether formal or informal, (i) to create any additional each Company Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Plan.
(d) Except Neither the Company nor any of its ERISA Affiliates maintains, sponsors, contributes to, or is obligated to contribute to, or has ever maintained, sponsored, contributed to, or been obligated to contribute to, any (i) pension plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code, (ii) “funded welfare plan” within the meaning of Section 419 of the Code, (iii) plan maintained or sponsored by a professional employer organization, (iv) multiple employer welfare arrangement, as set forth in Schedule 3.13(ddefined under Section 3(40)(A) of ERISA (without regard to Section 514(b)(6)(B) of ERISA), established or maintained for the Employee Benefit Plans have been operated purpose of offering or providing welfare plan benefits to the employees of two or more employers that are not ERISA Affiliates (including one or more self-employed individuals), or to their beneficiaries, or (v) any multiemployer plan (as defined in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal RequirementsSection 3(37) of ERISA).
(e) None Neither the Company nor any of the Company Subsidiaries has any Liability or obligation to provide post-termination or retiree life, health or other benefits, except to the extent required by COBRA or other applicable legal requirement at the sole expense of the recipient of such benefits or the dependent or beneficiary thereof.
(f) Neither the execution and delivery of this Agreement nor the consummation of any of the Transactions could (alone or in combination with one or more events or circumstances, including any termination of employment or service): (i) result in any compensation or benefit (including severance, golden parachute, bonus or otherwise) becoming due to any Company Employee; (ii) increase or otherwise enhance any compensation or benefit otherwise payable to any such individual; (iii) result in the acceleration of the time of payment, funding or vesting of any compensation or benefit; (iv) result in the acceleration or forgiveness (in whole or in part) of any outstanding loan to any Company Employee; or (v) require any contributions or payments to fund any obligations under any Company Employee Benefit Plans which are "welfare benefit plans," Plan. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property or in the form of benefits) by the Company or any of the Company Subsidiaries in connection with the Transactions (whether alone or in combination with other events or circumstances) will be an “excess parachute payment” within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None 280G of the Companies nor any Seller Party maintains Code. No Company Employee Plan provides for the gross-up or contributes reimbursement of Taxes under Section 4999 or ever 409A of the Code or otherwise. The Company has maintained or contributed made available to Buyer true, correct and complete copies of Section 280G calculations with respect to any "employee pension benefit plan" that is subject to Title IV of ERISA or disqualified individual in connection with the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the ClosingTransactions.
(g) The Companies have paid All of the Company Employees are located in the United States, and none of the Company Employee Plans provide compensation or benefits to their respective Employees any Person located outside the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial StatementsUnited States.
(h) Except The Company and each of the Company Subsidiaries are, and since December 2, 2019, have been, in compliance in all material respects with all applicable Laws related to employment, discrimination in employment, civil rights, workers’ compensation, unemployment, insurance applicable to Company Employees, disability, collective bargaining, collection and payment of Tax withholding or social security taxes and any similar payroll tax, severance pay, immigration, affirmative action, fair employment practices, equal employment opportunity, terms and conditions of employment, meal and rest periods, leaves of absence, worker classification (including the proper classification of workers as may independent contractors and consultants and employees as exempt or non-exempt), wages (including overtime wages), compensation and hours of work, work time, and occupational safety and health and employment practices. The Company and each of the Company Subsidiaries have maintained records in material compliance with applicable Laws for all Company Employees during their employment. Since December 2, 2019, neither the Company nor any of the Company Subsidiaries is or has engaged in any unfair labor practice within the meaning of the National Labor Relations Act or any similar applicable Laws, and there is no charge or complaint against the Company or any of the Company Subsidiaries by the National Labor Relations Board or any comparable Governmental Entity pending or, to the Knowledge of the Company, threatened.
(i) The Company and each of the Company Subsidiaries have conducted, or caused to be conducted, all of the immigration checks required by Law prior to any Company Employee commencing employment with the Company or any of the Company Subsidiaries, as applicable. The Company and the Company Subsidiaries have withheld all amounts required by applicable lawLaw or by Contract to be withheld from the wages, salaries, and other payments to Company Employees, and are not liable for any arrears of wages, compensation, overtime, Taxes, penalties or other sums for failure to comply with any of the foregoing withholding obligations. The Company and the Company Subsidiaries have paid in full to all Company Employees all wages, salaries, overtime, commissions, bonuses, benefits and other compensation due to be paid to or on behalf of such Company Employees, when such payments were due under applicable Law, Contract, Company Employee Plan or otherwise. The Company and the Company Subsidiaries do not have any Liability with respect to any misclassification of: (i) any Person as an independent contractor or agent rather than as an employee; (ii) any Company Employee leased from another employer; or (iii) any Company Employee currently or formerly classified as exempt from overtime wages.
(j) Neither the Company nor any of the Company Subsidiaries (i) is liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for Company Employees (other than routine payments to be made in the ordinary course of business), (ii) since December 2, 2019, engaged any consultants, sub-contractors or freelancers who, according to applicable Law, would be entitled to the rights of an employee vis-à-vis the Company or any of the Company Subsidiaries, including rights to severance pay or vacation, or (iii) is a party to a conciliation agreement, consent decree or other agreement or order with any Governmental Entity.
(k) There are no controversies pending or, to the Knowledge of the Company, threatened between the Company or any of the Company Subsidiaries and any of the Company Employees, which controversies have resulted, or have threatened to result, in an Action.
(l) Since December 2, 2019, (i) to the Knowledge of the Company, no allegations of sexual harassment, sexual misconduct, or discrimination have been made against any Company Employee, (ii) there are no Proceedings pending or, to the Knowledge of the Company, threatened relating to any allegations of sexual harassment, sexual misconduct, or discrimination by any Company Employee, and (iii) neither the Company nor any of the Company Subsidiaries has entered into any settlement agreements related to allegations of sexual harassment, sexual misconduct, or discrimination by any Company Employee.
(m) Neither the Company nor any of the Company Subsidiaries is, and has never been, a party to or bound by any collective bargaining agreement or other labor union contract (including any contract or agreement with any works council, trade union, or other labor-relations entity) with respect to any Company Employee, and no such collective bargaining agreement or other union contract is being negotiated by the Company or any of the Company Subsidiaries. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Company Employee. There have never been activities or proceedings of any labor union to organize the Company Employees. There is no labor dispute, strike, walkout, picketing, lockout, or work stoppage against the Company or any of the Company Subsidiaries pending or, to the Knowledge of the Company, threatened. The consummation of the Transactions will not entitle any Person (including any works council, trade union or other labor-relations entity) to any payments under any labor Contract or require the Company or any of the Company Subsidiaries to consult with, provide notice to, or obtain the consent or opinion of any union, works council, or similar labor relations entity.
(n) Each of the Company and the Company Subsidiaries is in compliance with the Worker Adjustment and Retraining Notification Act of 1988, as amended (“WARN Act”), or any similar state, local or foreign legal requirement. Since December 2, 2019, neither the Company nor any of the Companies is obligated to pay Company Subsidiaries has effectuated a “plant closing” (as defined in the WARN Act) affecting any unused sick leave site of employment or one or more facilities or operating units within any site of employment or facility of its business. Since December 2, 2019, there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of the Company or any of the Company Subsidiaries. Since December 2, 2019, neither the Company nor any of the Company Subsidiaries has been a party to any employees business transaction or engaged in layoffs or employment terminations sufficient in number, including as aggregated, to trigger application of any state, local or foreign Law similar to the WARN Act.
(o) Since December 2, 2019, neither the Company nor any of the Company Subsidiaries has entered into or made any outsourcing agreements or similar arrangements with any third party under which any person may become or cease to be an employee of the Company or any of the Company Subsidiaries upon the termination or expiry of their employment with the Companies.such agreements or arrangements. As used in this Agreement:
Appears in 1 contract
Samples: Securities Purchase Agreement (Masonite International Corp)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1) lists each employment, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice Section 4.20 of the Companies which are maintained solely for the benefit of their former Company Disclosure Schedule sets forth a true and current Employees, including, without limitation, all applicable "employee benefit plans" complete list as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesdate 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) No Employee Benefit Plan is an "employee pension benefit Neither 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 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" under , as defined in Section 3(23(37) of ERISA.
(c) Except as otherwise required by Legal Requirementshas not had and would not reasonably be expected to have, none individually or in the aggregate, a Material Adverse Effect on the Company, each Employee Plan that is intended to be qualified under Section 401(a) of the Companies have 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 the Company, no circumstances exist that would reasonably be expected to result in any commitmentsuch 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, whether formal individually or informalin the aggregate, (ia Material Adverse Effect on the Company, each trust created under any such Employee Plan is exempt from tax under Section 501(a) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Planthe Code and has been so exempt since its creation.
(d) Except as set forth has not had and would not reasonably be expected to have, individually or in Schedule 3.13(dthe aggregate, a Material Adverse Effect on the Company, since January 1, 2010, each 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 Material Adverse Effect 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 the Company’s knowledge, is threatened against or reasonably expected to involve, any Employee Benefit Plans have been operated in compliancePlan before any court or arbitrator or any Governmental Authority, in all material respectsincluding the Internal Revenue Service, with their terms and with applicable Legal Requirementsthe Department of Labor or the PBGC. To the extent knowledge of the Company, since January 1, 2010, no events have occurred with respect to any Employee Plan that would reasonably be expected to result in the Companies assessment of any excise taxes or penalties against the Buyer could Company or any of its Subsidiaries, except for events that have liability following not had and would not reasonably be expected to have, individually or in the Closingaggregate, a Material Adverse Effect on the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal RequirementsCompany.
(e) None 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 Benefit Plans which are "welfare 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 the Company nor any of its Subsidiaries has any current or projected liability for, and no 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 the Company or any of its Subsidiaries (other than coverage mandated by Applicable Law).
(g) There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any 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 Company Balance Sheet Date, except as required in order to comply with Applicable Law.
(h) No Employee Plan or other compensation benefit plans," 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 3(1409A 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 ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined Section 409A of the Code in IRC Section 4980B(g) and ERISA Section 607all material respects.
(fj) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed With respect to any "employee pension benefit plan" that is subject to Employee Plan covered by Subtitle B, Part 4 of Title IV I of ERISA or the minimum funding standards of Section 412 4975 of the IRC Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the extent that Buyer Company or any of its Subsidiaries to incur any material liability under ERISA or the Companies will have any liability following the ClosingCode.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.
Appears in 1 contract
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(13.13(a). sets forth a complete and accurate list of all employment agreements with employees of the Company or any of its Subsidiaries. Except for the employees who are parties to such employment agreements, all of the employees of the Company and each of its Subsidiaries are employed on an at-will basis (except for restrictions or limitations on the at-will basis of such employees imposed by general principles of law or equity).
(b) lists each employment, service, severance, change in control, non-compete The Company Reports or Schedule 3.13(b) sets forth a complete and consulting agreement between accurate list of all Employee Benefit Plans and all material Benefit Arrangements which affect Employees of the Company or any Employee, director, consultant, or independent contractor and the Companies of its Subsidiaries (the "Employee AgreementsCompany Plans"). Schedule 3.13(a)(2With respect to each Company Plan, the Company has made available to Buyer or to its representatives, true and complete copies of.
(i) describes the plans and related trust documents and amendments thereto, (ii) the most recent summary plan descriptions, if any, and the most recent annual report, if any, and (iii) the most recent actuarial valuation (to the extent applicable).
(c) With respect to each Company Plan, (i) the Company and each of its Subsidiaries is in compliance in all bonusmaterial respects with the terms of each Company Plan and with the requirements prescribed by all applicable statutes, deferred compensationorders or governmental rules or regulations, stock option(ii) the Company and each of its Subsidiaries has contributed to each Pension Plan included in the Company Plans not less than the amounts accrued for such plan for all plan periods for which payment is due, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice (iii) none of the Companies Company or any of its Subsidiaries has any funding commitment or other liabilities except as reserved for in the financial statements in or incorporated by reference into the Company Reports, and, in the case of clause (i) through (iii), as is set forth in Schedule 3.13(c).
(d) None of the Company or any of its Subsidiaries has made any commitment to establish any new Employee Benefit Plan, to modify any Employee Benefit Plan, or to increase benefits or compensation of Employees of the Company or any of its Subsidiaries (except for normal increases in compensation consistent with past practices), and no intention to do so has been communicated to Employees of the Company or any of its Subsidiaries.
(e) There are no pending or anticipated claims against or otherwise involving any of the Company Plans or any fiduciaries thereof with respect to their duties to the Plans and no suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of Company Plan activities) has been brought against or with respect to any such Company Plans.
(f) Neither the Company, the Operating Partnership or any entity under "common control" with the Company or the Operating Partnership within the meaning of Section 4001 of ERISA has contributed to, or been required to contribute to, any "multiemployer plan" (as defined in Section 3(37) and 4001(a)(3) of ERISA).
(g) Except as set forth on Schedule 3.13(g), the Company and its Subsidiaries do not maintain or contribute to any plan or arrangement which are maintained solely for provides or has any liability to provide life insurance, medical or other employee welfare benefits to any Employee or former Employee upon his retirement or termination of employment and the benefit of their Company and its Subsidiaries have never represented, promised or contracted (whether in oral or written form) to any employee or former employee that such benefits would be provided.
(h) For purposes hereof, "Employee Benefit Plans" means each and current Employees, including, without limitation, all applicable "employee benefit plans" as defined by in Section 3(3) of ERISA maintained or contributed to by a party hereto or in which a party hereto participates or participated and which provides benefits to Employees, including (the i) any such plan that are "Employee Benefit employee welfare benefit plans" as defined in Section 3(l) of ERISA, including retiree medical and life insurance plans ("Welfare Plans"), and (ii) any such plans that constitute "employee pension benefit plans" as defined in Section 3(2) of ERISA ("Pension Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide "Benefit Arrangements" means life and health insurance, hospitalization, savings, bonus, deferred compensation, incentive compensation, holiday, vacation, severance pay, sick pay, sick leave, disability, tuition refund, service award, company car, scholarship, relocation, patent award, fringe benefit, individual employment, consultancy or severance contracts and other polices or practices of a party hereto providing employee or executive compensation or benefits to former or current Employees of the Companies.
(b) No Employees, other than Employee Benefit Plan is an Plans. "employee pension benefit planEmployees" mean all current employees, former employees and retired employees of a party hereto or any of its Subsidiaries, including employees on disability, layoff or leave status. "Controlled Group Liability" means any and all liabilities under Section 3(2) of ERISA.
(c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informal, (i) to create any additional Employee Benefit Plan; Title IV of ERISA, (iiH) to modify or change any Employee Benefit Plan; or Section 302 of ERISA, (iii) to maintain for any period Sections 412 and 4971 of time any Employee Benefit Plan.
the Code, (div) Except as set forth in Schedule 3.13(d)the continuation coverage requirements of Section 601 et seq, of ERISA and Section 4980B of the Code, and (v) corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Employee Benefit Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal RequirementsPlans.
(e) None of the Employee Benefit Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.
Appears in 1 contract
Samples: Stock Purchase Agreement (Berkshire Realty Co Inc /De)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(14.14 annexed hereto lists all of the Companies’ Plans. For the purposes of this Agreement, “Plan” means any “employee benefit plan” (as defined in Section 3(3) lists of the Employee Retirement Income Security Act of 1974 or any successor law, and rules and regulations issued pursuant to such Act or any successor law (“ERISA”)) and each employmentother plan, servicearrangement or policy (other than employment agreements with individuals employed by any of the Companies) relating to stock options, severancestock purchases, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonuscompensation, deferred compensation, stock optionseverance, stock appreciation rightfringe benefits or other employee benefits, vacation and other agreements in each case maintained or fringe benefit plancontributed to, arrangement or practice required to be maintained or contributed to, by any of the Companies which are maintained solely for the benefit of their any present or former and current Employees, including, without limitation, all applicable "employees of any of the Companies. All of the Plans listed on Schedule 4.14 which are employee benefit plans" as defined by plans within the meaning of Section 3(3) of ERISA (are in material compliance with the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits applicable provisions of ERISA, the Code, and the rules and regulations thereunder, except where the failure to former do so would not, individually or current Employees in the aggregate, reasonably be expected to result in a material adverse effect on any of the Companies.
. There are no claims (b) No Employee Benefit except claims for benefits payable in the normal operation of the Plans), suits, proceedings, and, to the Sellers’ or the Companies’ knowledge, investigations by any governmental agency against or involving any Plan is an "employee pension benefit plan" or asserting any rights to or claims for benefits or reimbursements under Section 3(2) of ERISA.
(c) Except as otherwise any Plan. All contributions to the Plans required to be made by Legal Requirements, none any of the Companies have any commitment, whether formal or informal, (i) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period in accordance with the terms of time any Employee Benefit Plan.
(d) Except as set forth in Schedule 3.13(d), the Employee Benefit Plans have been operated in compliancetimely made and all such contributions have been adequate to ensure that such Plans are fully funded. No event has occurred and, in all material respectsto the Sellers’ and the Companies’ knowledge, with their terms and with applicable Legal Requirementsno circumstances exist that could adversely affect the tax-qualification of any Plan that is intended to be a tax-qualified plan. To the extent Sellers’ and the Companies’ knowledge, no event has occurred and no circumstances exist that could adversely affect the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements.
(e) None tax-qualification of the Employee Benefit Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under each Plan that is intended to be a "group health tax-qualified plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) . None of the Companies has, nor have any Seller Party maintains or contributes or of their ERISA Affiliates, ever has maintained or maintained, contributed to or otherwise had any "liability with respect to an employee pension benefit plan" that is plan subject to Title IV of ERISA, Section 401 of ERISA or the minimum funding standards of Section 412 of the IRC Code. For purposes of this Section, “ERISA Affiliate” shall mean any person (as defined in Section 3(9) of ERISA) that is or has been a member of any group of persons described in Section 414(b), (c), (m), or (o) of the Code including any of the Companies. The transactions contemplated by this Agreement and by the GPS Stock Purchase Agreement will not alone entitle any such employee to any additional payments or benefits or any acceleration of the extent that Buyer time of payment or vesting of any benefits under any employee benefit or executive compensation plan, arrangement or agreement maintained by or entered into with any of the Companies. Any amount to be received (whether in cash or property or the Companies will have vesting of property) as a result of any liability following of the Closing.
(g) The Companies have paid to their respective Employees transactions contemplated by this Agreement and by the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required GPS Stock Purchase Agreement by applicable law, neither any employee of any of the Companies under any employment, severance or termination agreement, other compensation arrangement or benefit plan would not be characterized as an “excess parachute payment” (as such term is obligated to pay any unused sick leave to any employees upon termination defined in Section 280G(b)(1) of their employment with the Code). To the Sellers’ and the Companies’ knowledge, each of the Companies and its Plans has materially complied with all required tax filings.
Appears in 1 contract
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(13.13(a) lists each employment, service, severance, change in control, non-compete sets forth a complete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies accurate list of all employment agreements (the "Employee Employment Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation between the Company or any of its Subsidiaries and other agreements or fringe benefit plan, arrangement or practice any employees of the Companies which are maintained solely Company or any of its Subsidiaries. Except for the benefit employees of their former and current Employees, including, without limitationthe Company or its Subsidiaries who are parties to such Employment Agreements, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesemployees of the Company and each of its Subsidiaries are employed on an at-will basis (except for restrictions or limitations on the at-will basis of such employees imposed by law or equity or general principles of law or equity), other than such employees party to Employment Agreements that are not, in the aggregate, material to the Company.
(b) No The Company Reports or Schedule 3.13(b) set forth a complete and accurate list of all material Employee Benefit Plans and all material Benefit Arrangements which cover Employees of the Company or any of its Subsidiaries with respect to their employment relationship with the Company or any of its Subsidiaries (the "Company Plans"). With respect to each Company Plan, the Company has made available to Buyer true and complete copies of: (i) the plans and related trust documents and all amendments thereto, (ii) the most recent summary plan descriptions, if any, and the most recent annual report, if any, (iii) the most recent actuarial valuation (to the extent applicable), and (iv) the most recent determination letter issued by the IRS with respect to any Company Plan is an "employee pension benefit plan" intended to be qualified under Section 3(2401(a) of ERISAthe Code.
(c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informalWith respect to each Company Plan, (i) to create any additional Employee Benefit the Company and each of its Subsidiaries is, and has been since the date of adoption of each Company Plan; , in compliance in all material respects with the terms of each such Company Plan and with the requirements prescribed by all applicable statutes, orders or governmental rules or regulations, (ii) the Company and each of its Subsidiaries has contributed to modify or change any Employee Benefit Plan; or each Pension Plan included in the Company Plans not less than the amounts accrued for such plan for all plan periods for which payment is due, and (iii) neither the Company nor any of its Subsidiaries has any funding commitment or other accrued liabilities except as set forth on Schedule 3.13(c) or as reserved for in the financial statements in or incorporated by reference into the Company Reports, and in the case of each of clauses (i), (ii), and (iii), except for such matters as would not, individually or in the aggregate, reasonably be expected to maintain for any period of time any Employee Benefit Planresult in a Material Adverse Effect.
(d) Except as set forth in on Schedule 3.13(d), none of the Company or any of its Subsidiaries has made any commitment to establish any new Employee Benefit Plans have Plan or Benefit Arrangement, to modify any Employee Benefit Plan or Benefit Arrangement, or to increase benefits or compensation of Employees of the Company or any of its Subsidiaries (except for normal increases in compensation consistent with past practices), and, to the Company's knowledge, no intention to do so has been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To communicated to Employees of the extent that the Companies Company or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirementsany of its Subsidiaries.
(e) None Except as set forth on Schedule 3.13(e), there are no pending or, to the Company's knowledge, anticipated government audits or claims (excluding claims for benefits incurred in the ordinary course of Company Plan activities) against or otherwise involving any of the Company Plans or any fiduciaries thereof with respect to their duties to the Company Plans and no suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of Company Plan activities) has been brought against or with respect to any such Company Plans.
(f) Neither the Company nor any of the ERISA Affiliates has, at any time after September 25, 1980, contributed to, or been required to contribute to, any "multiemployer plan" (as defined in Sections 3(37) and 4001(a)(3) of ERISA).
(g) Except as required by the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or requirements of state law and regulations and except as set forth on Schedule 3.13(g), the Company and its Subsidiaries do not maintain or contribute to any plan or arrangement which provides or has any liability to provide life insurance, medical or other employee welfare benefits described in Section 3(1) of ERISA to any Employee or former Employee following his retirement or termination of employment and, to the Company's knowledge, the Company and its Subsidiaries have never represented, promised or contracted (whether in oral or written form) to any Employee or former Employee that such benefits would be provided.
(h) For purposes hereof, "Employee Benefit Plans Plans" means each and all "employee benefit plans" as defined in Section 3(3) of ERISA maintained or contributed to by the Company or a Subsidiary or in which the Company or a Subsidiary participates or participated and which provides benefits to Employees, including (i) any such plans that are "employee welfare benefit plans," within the meaning of as defined in Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employmentincluding retiree medical and life insurance plans ("Welfare Plans"), except for COBRA rights under a and (ii) any such plans that constitute "group health planemployee pension benefit plans" as defined in IRC Section 4980B(g3(2) of ERISA ("Pension Plans"). "Benefit Arrangements" means life and ERISA Section 607.
(f) None health insurance, hospitalization, savings, bonus, deferred compensation, incentive compensation, holiday, vacation, severance pay, sick pay, sick leave, disability, tuition refund, service award, company car, scholarship, relocation, patent award, fringe benefit, individual employment, consultancy or severance contracts and other polices or practices of the Companies nor any Seller Party maintains Company or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.a Subsidiary providing
Appears in 1 contract
Employees and Employee Benefit Plans. (a) The Company Reports and Schedule 3.13(a)(13.13(a) lists each employment, service, severance, change in control, non-compete together set forth a complete and consulting agreement between accurate list of all Employee Benefit Plans and all material Benefit Arrangements which affect Employees of the Company or any Employee, director, consultant, or independent contractor and the Companies of its Subsidiaries (the "Employee AgreementsCompany Plans"). Schedule 3.13(a)(2With respect to each Company Plan, (i) describes the Company and each of its Subsidiaries is in compliance in all bonusmaterial respects with the terms of each Company Plan and with the requirements prescribed by all applicable statutes, deferred compensationorders or governmental rules or regulations, stock option(ii) the Company and each of its Subsidiaries has contributed to each Pension Plan included in the Company Plans not less than the amounts accrued for such plan for all plan periods for which payment is due, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice (iii) none of the Companies Company or any of its Subsidiaries has any funding commitment or other liabilities except as reserved for in the financial statements in or incorporated by reference into the Company Reports, or, in the case of clauses (i) through (iii), as is set forth in Schedule 3.13(a).
(b) Other than in connection with the proposed substitution of the Operating Partnership as the employer and paymaster of the employees of the Company on or about January 1, 1998, or as set forth on Schedule 3.13(a) none of the Company or any of its Subsidiaries has made any commitment to establish any new Employee Benefit Plan, to modify any Employee Benefit Plan, or to increase benefits or compensation of Employees of the Company or any of its Subsidiaries (except for normal increases in compensation consistent with past practices), and no intention to do so has been communicated to Employees of the Company or any of its Subsidiaries.
(c) There are no pending or, to the Company's Knowledge, threatened claims against or otherwise involving any of the Company Plans or any fiduciaries thereof with respect to their duties to the Company Plans and no suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of Company Plan activities) has been brought against or with respect to any such Company Plans.
(d) Neither the Company, the Operating Partnership or any entity under "common control" with the Company or the Operating Partnership within the meaning of Section 4001 of ERISA has contributed to, or been required to contribute to, any "multiemployer plan" (as defined in Section 3(37) and 4001(a)(3) of ERISA).
(e) Other than the Company's Plans, the Company and its Subsidiaries do not maintain or contribute to any plan or arrangement which are maintained solely for provides or has any liability to provide life insurance, medical or other employee welfare benefits to any Employee or former Employee upon his retirement or termination of employment and the benefit of their Company and its Subsidiaries have never represented, promised or contracted (whether in oral or written form) to any employee or former employee that such benefits would be provided.
(f) For purposes hereof, "Employee Benefit Plans" means each and current Employees, including, without limitation, all applicable "employee benefit plans" as defined by in Section 3(3) of ERISA maintained or contributed to by a party hereto or in which a party hereto participates or participated and which provides benefits to Employees, including (the i) any such plans that are "Employee Benefit employee welfare benefit plans" as defined in Section 3(l) of ERISA, including retiree medical and life insurance plans ("Welfare Plans"), and (ii) any such plans that constitute "employee pension benefit plans" as defined in Section 3(2) of ERISA ("Pension Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide "Benefit Arrangements" means life and health insurance, hospitalization, savings, bonus, deferred compensation, incentive compensation, holiday, vacation, severance pay, sick pay, sick leave, disability, tuition refund, service award, company car, scholarship, relocation, patent award, fringe benefit, individual employment, consultancy or severance contracts and other polices or practices of a party hereto providing employee or executive compensation or benefits to former or current Employees of the Companies.
(b) No Employees, other than Employee Benefit Plan is an Plans. "employee pension benefit planEmployees" mean all current employees, former employees and retired employees of a party hereto or any of its Subsidiaries, including employees on disability, layoff or leave status. "Controlled Group Liability" means any and all liabilities under Section 3(2) of ERISA.
(c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informal, (i) to create any additional Employee Benefit Plan; Title IV of ERISA, (ii) to modify or change any Employee Benefit Plan; or Section 302 of ERISA, (iii) to maintain for any period Sections 412 and 4971 of time any Employee Benefit Plan.
the Code, (div) Except as set forth in Schedule 3.13(d)the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, other than such liabilities that arise solely out of, or relate solely to, the Employee Benefit Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal RequirementsPlans.
(e) None of the Employee Benefit Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None of the Companies nor any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the Companies.
Appears in 1 contract
Samples: Stock Purchase Agreement (Burnham Pacific Properties Inc)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1Section 4.11(a) lists each employment, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice of the Companies Company Disclosure Letter sets forth a complete and correct list of each material Company Benefit Plan (including, to the extent applicable, any Company Benefit Plan maintained outside of the United States or which are maintained solely provides compensation or benefits primarily for the benefit of any employee or former employee of the Company or any of its Subsidiaries who primarily resides outside the United States (each, a “Foreign Plan”)). With respect to each material Company Benefit Plan, a true, correct and complete copy of each of the following documents, and all amendments and modifications to such documents, has been made available to Parent: (i) the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to such Company Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last plan year, (iii) the most recently received IRS determination letter or opinion letter, if any, relating to such Company Benefit Plan, (iv) the most recent actuarial report and/or financial statement, if any, relating to such Company Benefit Plan, (v) the most recent summary plan description and any summaries of material modification relating to such Company Benefit Plan, and (vi) any related insurance, trust and administration agreements. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (w) all Company Benefit Plans comply and have been established, maintained, funded, operated, and administered in accordance with their former terms and current Employeesthe requirements of all Laws applicable thereto (including ss1-99A Xxxxxxxx Xxx 0000 applicable from time to time); (x) there are no actions, includingaudits, without limitationinvestigations, all applicable "employee benefit plans" suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened, involving any Company Benefit Plan; (y) there have been no non-exempt “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA with respect to any Company Benefit Plan, the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other “fiduciary” with respect to a Company Benefit Plan, and (z) no event has occurred, and no conditions or circumstance exists, that would reasonably be expected to subject the Company, or any “group health plan” (as defined by in Section 3(3733(a)(1) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3ERISA) describes all Seller Plans which provide benefits to former penalties or current Employees excise taxes under Sections 4980D, 4980H, or 4980I of the CompaniesCode or any other provision of the Healthcare Reform Laws. Each Company Benefit Plan has been maintained and operated in documentary and operational compliance in all material respects with Section 409A of the Code or an available exemption therefrom.
(b) No Employee Each Company Benefit Plan that is an "employee pension benefit plan" intended to be qualified under Section 3(2401(a) of ERISA.
the Code is the subject of a current favorable determination letter or opinion letter from the IRS, and there are no existing circumstances or events that have or would reasonably be expected to adversely affect the qualified status of each such Company Benefit Plan. (c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informal, (i) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Plan.
(d) Except as set forth in Schedule 3.13(d), the Employee Benefit Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To the extent that the Companies or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements.
(eon Section 4.11(c)(i) None of the Employee Benefit Plans which are "welfare benefit plans," within Company Disclosure Letter, neither the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(f) None of the Companies Company nor any Seller Party maintains of its Subsidiaries or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closing.
(g) The Companies have paid to their respective Employees the "year end" bonuses attributable to such Employees performance during fiscal year 2002ERISA Affiliates has any Liability in respect of any health, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial Statements.
(h) Except medical, dental or life insurance benefits following retirement or other termination of employment other than as may be required by applicable law, neither of the Companies is obligated to pay any unused sick leave to any employees upon termination of their employment with the CompaniesLaw.
Appears in 1 contract
Samples: Merger Agreement (Meritor, Inc.)
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(1Section 4.18(a) lists each employment, service, severance, change in control, non-compete and consulting agreement between any Employee, director, consultant, or independent contractor and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice of the Companies which are maintained solely for the benefit of their former Company Disclosure Schedule sets forth a true and current Employees, including, without limitation, all applicable "employee benefit plans" complete list as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesdate 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) No Employee Benefit Plan is an "employee pension benefit Neither 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, during 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" under , as defined in Section 3(23(37) of ERISA.
(c) Except as otherwise required by Legal Requirementshas not had and would not reasonably be expected to have, none individually or in the aggregate, a Company Material Adverse Effect, each Company Employee Plan that is intended to be qualified under Section 401(a) of the Companies have 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 the Company, no circumstances exist that would reasonably be expected to result in any commitmentsuch 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, whether formal individually or informalin the aggregate, (ia Company Material Adverse Effect, each trust created under any such Company Employee Plan is exempt from tax under Section 501(a) to create any additional Employee Benefit Plan; (ii) to modify or change any Employee Benefit Plan; or (iii) to maintain for any period of time any Employee Benefit Planthe Code and has been so exempt since its creation.
(d) Except as set forth has not had and would not reasonably be expected to have, individually or in Schedule 3.13(dthe aggregate, a Company Material Adverse Effect, each 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 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 the Company’s knowledge, is threatened against or reasonably expected to involve, any Company Employee Benefit Plans have been operated in compliancePlan before any Governmental Authority, in all material respectsincluding the Internal Revenue Service, with their terms and with applicable Legal Requirements. To the extent that the Companies Department of Labor or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal RequirementsPBGC.
(e) None Except as provided under this Agreement or pursuant to Applicable Law, with respect to each director, officer, or employee (including each former director, officer, or employee) of the Employee Benefit Plans which are "welfare benefit plans," within Company or any of its Subsidiaries, the meaning consummation of Section 3(1the 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 ERISAcompensation or benefits under, provide for continuing benefits or coverage 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 termination the Closing, Parent to merge, amend or retirement from employment, except for COBRA rights under a "group health plan" terminate any Company Employee Plan or (iv) result in the payment of any “excess parachute payment” (as defined in IRC Section 4980B(g280G(b)(1) and ERISA Section 607of the Code).
(f) None Neither the Company nor any of its Subsidiaries has any current or projected liability for, and no 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 (including any former director, officer, or employee) of the Companies nor Company or any Seller Party maintains or contributes or ever has maintained or contributed to any "employee pension benefit plan" that is subject to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the Closingits Subsidiaries (other than coverage mandated by Applicable Law).
(g) The Companies have paid Neither the Company nor any of its Subsidiaries has any obligation to their respective Employees gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 409A or 4999 of the "year end" bonuses attributable to such Employees performance during fiscal year 2002, in an aggregate amount equal to the amount accrued for 2002 accrued incentives on the 2002 Financial StatementsCode.
(h) Except as may be required by applicable law, neither 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 Companies 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 such approval has been revoked (nor, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor that is obligated reasonably likely to pay affect any unused sick leave such approval or increase the costs relating thereto; (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 reasonably could be imposed upon the assets of the Company or any employees upon termination of their employment with its Subsidiaries by reason of such Non-U.S. Plan; and (iv) the Companiesfinancial 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, the Company has made available to Parent a 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 the case of any such Company Equity Award that is a Company PSU Award), (B) the exercise price of each such Company Equity Award that is a Company Stock Option, and (C) the vesting schedule of each such Company Equity Award that is unvested as of December 9, 2020.
Appears in 1 contract
Samples: Merger Agreement
Employees and Employee Benefit Plans. (a) Schedule 3.13(a)(13.13(a) lists each employment, service, severance, change in control, non-compete sets forth a complete and consulting agreement accurate list of all employment agreements between the Company or any Employee, director, consultant, or independent contractor of its Subsidiaries and the Companies (the "Employee Agreements"). Schedule 3.13(a)(2) describes all bonus, deferred compensation, stock option, stock appreciation right, vacation and other agreements or fringe benefit plan, arrangement or practice employees of the Companies which are maintained solely Company or any of its Subsidiaries. Except for the benefit of their former and current Employees, including, without limitationemployees who are parties to such employment agreements, all applicable "employee benefit plans" as defined by Section 3(3) of ERISA (the "Employee Benefit Plans"). Schedule 3.13(a)(3) describes all Seller Plans which provide benefits to former or current Employees of the Companiesemployees of the Company and each of its Subsidiaries are employed on an at-will basis (except for restrictions or limitations on the at-will basis of such employees imposed by law or equity or general principles of law or equity).
(b) No Schedule 3.13(b) sets forth a complete and accurate list of all Employee Benefit Plan is an Plans and all material Benefit Arrangements which cover Employees of the Company or any of its Subsidiaries with respect to their employment relationship with the Company or any of its Subsidiaries (the "employee pension benefit plan" under Section 3(2Company Plans"). With respect to each Company Plan, the Company has made available to Buyer true and complete copies of: (i) of ERISAthe plans and related trust documents and amendments thereto, (ii) the most recent summary plan descriptions, if any, and the most recent annual report, if any, and (iii) the most recent actuarial valuation (to the extent applicable).
(c) Except as otherwise required by Legal Requirements, none of the Companies have any commitment, whether formal or informalWith respect to each Company Plan, (i) to create any additional Employee Benefit Plan; the Company and each of its Subsidiaries is in compliance in all material respects with the terms of each Company Plan and with the requirements prescribed by all applicable statutes, orders or governmental rules or regulations, (ii) the Company and each of its Subsidiaries has contributed to modify or change any Employee Benefit Plan; or each Pension Plan included in the Company Plans not less than the amounts accrued for such plan for all plan periods for which payment is due, (iii) none of the Company or any of its Subsidiaries has any funding commitment or other accrued liabilities except as set forth on Schedule 3.13(c) or as reserved for in the financial statements in or incorporated by reference into the Company Reports, and (iv) there are and have been no prohibited transactions involving any Company Plan and in the case of each of clauses (i), (ii), (iii) and (iv), except for such matters as would not, individually or in the aggregate, reasonably be expected to maintain for any period of time any Employee Benefit Planresult in a Material Adverse Effect.
(d) Except as set forth in on Schedule 3.13(d), none of the Company or any of its Subsidiaries has made any commitment to establish any new Employee Benefit Plans have Plan, to modify any Employee Benefit Plan, or to increase benefits or compensation of Employees of the Company or any of its Subsidiaries (except for normal increases in compensation consistent with past practices), and to the Company's knowledge, no intention to do so has been operated in compliance, in all material respects, with their terms and with applicable Legal Requirements. To communicated to Employees of the extent that the Companies Company or the Buyer could have liability following the Closing, the Seller Plans have been operated in compliance, in all material respects, with their terms and with applicable Legal Requirementsany of its Subsidiaries.
(e) None There are no pending or, to the Company's knowledge, anticipated claims (excluding claims for benefits incurred in the ordinary course of Company Plan activities) against or otherwise involving any of the Employee Benefit Company Plans which are "welfare benefit plans," within or any fiduciaries thereof with respect to their duties to the meaning Company Plans and no suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of Section 3(1Company Plan activities) of ERISA, provide for continuing benefits has been brought against or coverage after termination or retirement from employment, except for COBRA rights under a "group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607with respect to any such Company Plans.
(f) None Neither the Company nor any of the Companies nor ERISA Affiliates has, at any Seller Party maintains time after September 25, 1980, contributed to, or contributes or ever has maintained or contributed been required to contribute to, any "employee pension benefit multiemployer plan" that is subject to Title IV (as defined in Sections 3(37) and 4001(a)(3) of ERISA or the minimum funding standards of Section 412 of the IRC to the extent that Buyer or the Companies will have any liability following the ClosingERISA).
(g) The Companies have paid Except as required by the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or requirements of state law and regulations and except as set forth on Schedule 3.13(g), the Company and its Subsidiaries do not maintain or contribute to their respective Employees the "year end" bonuses attributable any plan or arrangement which provides or has any liability to such Employees performance during fiscal year 2002provide life insurance, medical or other employee welfare benefits described in an aggregate amount equal Section 3(l) of ERISA to any Employee or former Employee following his retirement or termination of employment and, to the amount accrued for 2002 accrued incentives on Company's knowledge, the 2002 Financial StatementsCompany and its Subsidiaries have never represented, promised or contracted (whether in oral or written form) to any Employee or former Employee that such benefits would be provided.
(h) Except For purposes hereof, "Employee Benefit Plans" means each and all "employee benefit plans" as may be required defined in Section 3(3) of ERISA maintained or contributed to by applicable lawthe Company or a Subsidiary or in which the Company or a Subsidiary participates or participated and which provides benefits to Employees, neither including (i) any such plans that are "employee welfare benefit plans" as defined in Section 3(l) of the Companies is obligated to pay ERISA, including retiree medical and life insurance plans ("Welfare Plans"), and (ii) any unused sick leave to any employees upon termination such plans that constitute "employee pension benefit plans" as defined in Section 3(2) of their employment with the CompaniesERISA ("Pension Plans").
Appears in 1 contract
Samples: Stock and Note Purchase Agreement (Prometheus Assisted Living LLC)
