Employees; Benefit Plans. (1) Section 3.17(a) of the Seller Disclosure Schedule contains a true, correct and complete list of each Company Benefit Plan and Seller Benefit Plan and indicates whether a Company Benefit Plan is a Sponsored Company Benefit Plan. To the extent applicable, true, correct and complete copies of the following have been made available to Purchaser: (i) the plan document, if any, for each Seller Benefit Plan, including any amendments to the plan document; (ii) the most recent annual report (Form 5500 series), if any, filed with the Internal Revenue Service (“IRS”) or the U.S. Department of Labor with respect to each Company Benefit Plan; (iii) the most recent summary plan description, including any summaries of material modifications for each Company Benefit Plan for which a summary plan description is required; (iv) each trust agreement, insurance policy and any other Contract relating to the funding, investment or administration of such Company Benefit Plan; (v) the most recent determination or opinion letter issued by the IRS with respect to any such Seller Benefit Plan intended to be qualified under Section 401(a) of the Code, if any; and (vi) any material non-routine correspondence with the U.S. Department of Labor, IRS or any other Governmental Authority regarding any such Seller Benefit Plan. (2) Following the Closing, except (i) as expressly provided in Section 5.11, (ii) for any payment or benefit that is a Transaction Expense or (iii) for any Sponsored Company Benefit Plan, neither the Company Group nor any Affiliate of the Company Group (applying the principles of clause (b)(ii) of the definition of Affiliate herein) would reasonably be expected to have any Liability with respect to any Seller Benefit Plan. (3) Except as set forth on Section 3.17(c) of the Seller Disclosure Schedule, since the Lookback Date, each Seller Benefit Plan has been established, maintained and administered in compliance in all material respects in accordance with its terms and applicable Law (including ERISA and the Code). Each Seller Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination, opinion, or advisory letter from the IRS on which the applicable entity is entitled to rely, and, to the Knowledge of Seller, there are no facts or circumstances that would reasonably be expected to cause the loss of such qualification. There are no pending or, to the Knowledge of Seller, threatened Proceedings (other than routine claims for benefits in the normal course) with respect to any Seller Benefit Plan, or any trust associated with such plan, that would result in a material Liability to the Company Group. Neither the Company Group nor Seller has engaged in a non-exempt “prohibited transaction” within the meaning of section 406 of ERISA or section 4975 of the Code, and to the Knowledge of Seller, no “prohibited transaction,” within the meaning of section 406 and section 407 of ERISA or section 4975 of the Code, has occurred with respect to any Seller Benefit Plan, in each case, that would result in a material Liability to the Company Group. To the Knowledge of Seller, no fiduciary (within the meaning of Section 3(21) of ERISA) has breached his or her fiduciary duty with respect to any Seller Benefit Plan that would result in a material Liability to the Company Group. All contributions, premiums and other payments required under the terms of each Company Benefit Plan or applicable Laws have been timely made in all material respects in accordance with all applicable Laws and Company Benefit Plan terms. (4) Except as set forth on Section 3.17(d) of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would reasonably be expected to, (either alone or in combination with another event) (i) result in any compensation becoming due, or increase the amount of any compensation due, to any Service Provider, (ii) increase any benefits under any Seller Benefit Plan or (iii) entitle the recipient of any material compensatory payment or compensatory benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefit. (5) Except as set forth on Section 3.17(e) of the Seller Disclosure Schedule, neither the Company nor the Company Subsidiary has any material Liability or obligation to provide post-employment medical or life insurance to any current or former employees of the Company, the Company Subsidiary or Seller or any Affiliate of Seller, except to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar state or local Laws. (6) No Sponsored Company Benefit Plan is, and neither the Company nor any Person that is under common control with the Company under ERISA 4001(b) or considered a single employer with the Company under Code Sections 414(b), 414(c), 414(m) or 414(o) maintains, contributes to, or has any obligation to contribute to, or has, during the past six years maintained, contributed to, had any obligation to contribute to or otherwise had any material Liability with respect to any, (i) pension plan (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 303 of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or (iii) “multiple employer plan” (as defined in Section 413(c) of the Code). (7) A list of Service Providers (identified by their employee ID numbers) (such list the “Service Provider Census”), as of the date of this Agreement, has been provided to Purchaser, including, for each such Service Provider, as applicable, his or her (i) employee number, (ii) home country, (iii) home state, (iv) office location, (v) whether such Service Provider is paid hourly or is on salary (including currency of pay), (vi) classification as an exempt- or non-exempt employee under the Fair Labor Standards Act, (vii) hourly rate or annual salary, (viii) 2019 annual incentive bonus award, (ix) bonus target, (x) 2019 actual gross earnings, (xi) 2020 year-to-date earnings as of July 31, 2020, (xii) active status, (xiii) original hire date, (xiv) job title, (xv) service classification and (xvi) whether such employee is full- or part-time. (8) Each member of the Company Group and, with respect to Service Providers, Seller and each Affiliate of Seller (other than the Company Group) is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws governing the employment of labor, including all contractual commitments and all such Laws. (9) None of the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller is party to a settlement agreement with a current or former Service Provider since the Lookback Date that involves allegations of sexual harassment. To the Knowledge of Seller, since the Lookback Date, no written claims of sexual harassment have been made against any officer or member of the senior leadership team of the Company with respect to the conduct or alleged conduct of any such Service Provider during such Service Provider’s engagement with the Company, the Company Subsidiary, Seller or an Affiliate of Seller. (10) (i) No union or other collective bargaining unit or employee organizing entity is certified as representing any of the Service Providers or holds bargaining rights with respect to the Service Providers, (ii) no union or committee or other collective bargaining unit or employee organizing entity is recognized by the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller as representing any of the Service Providers, (iii) to the Knowledge of Seller, there are no threatened or pending union organizing activities involving any Service Providers and (iv) no Consent is required from any union or committee or other collective bargaining unit or employee organizing entity in connection with the transactions contemplated hereby. (11) (i) There is no, pending, or to the Knowledge of Seller, threatened, Proceeding with respect to labor or employment matters which, if adversely decided, may reasonably be expected, individually or in the aggregate, to create a Liability that would be material to the Company Group, taken as a whole and (ii) the Company, the Company Subsidiary and Seller with respect to Service Providers, have not experienced any labor strike, material slowdown, material work stoppage, or other material labor dispute since the Lookback Date, nor are any pending or, to the Knowledge of Seller, threatened in writing such activities against the Company, the Company Subsidiary or, with respect to Service Providers, Seller or an Affiliate of Seller. (12) Since the Lookback Date, the Company Group has been in compliance with its obligations under the Workers Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar as it relates to an employer’s obligations in the context of mass layoffs) (the “WARN Act”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Laureate Education, Inc.)
Employees; Benefit Plans. (1a) Section 3.17(a) of the Seller Disclosure Schedule 3.22 contains a true, correct true and complete list of each any Employee Benefit Plans maintained or contributed to or required to be contributed to by the Company for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans"). No member of the Company Group (other than the Company) maintains or contributes to or is required to contribute to any Employee Benefit Plan and Seller for the benefit of any employee or former employee of the Company Group or any of their ERISA Affiliates. Schedule 3.22 identifies each of the Plans that is an Employee Welfare Benefit Plan, or Employee Pension Benefit Plan and indicates whether a Company Benefit Plan is a Sponsored Company Benefit Plan. To (such plans being hereinafter referred to collectively as the extent applicable"ERISA Plans").
(b) With respect to each of the Plans, true, correct Seller has heretofore delivered or made available to the Buyer true and complete copies of each of the following have been made available to Purchaserdocuments: (i) a copy of the plan document, if any, Plan documents (including all amendments thereto) for each Seller Benefit written Plan, including any amendments to the plan document; (ii) a copy of the most recent annual report (Form 5500 series), if any, filed with the or Internal Revenue Service (“IRS”) or the U.S. Department of Labor Form 5500 Series, if required under ERISA, with respect to each Company Benefit Plansuch Plan for the last Plan year ending prior to the date of this Agreement for which such a report was filed; (iii) a copy of the most recent summary plan descriptionactuarial report, including any summaries of material modifications for if required under ERISA, with respect to each Company Benefit such Plan for which a summary plan description is requiredthe last Plan year ending prior to the date of this Agreement; (iv) each trust agreementa copy of the most recent Summary Plan Description ("SPD"), insurance policy and any other Contract relating together with all summaries of material modification issued subsequent to the funding, investment or administration date of such Company Benefit SPD, required under ERISA with respect to such Plan; and (v) the most recent determination or opinion letter issued by received from the IRS with respect to any such Seller Benefit each Plan that is intended to be qualified under Section 401(a) of the Code, if any; and (vi) any material non-routine correspondence with the U.S. Department of Labor, IRS or any other Governmental Authority regarding any such Seller Benefit Plan.
(2c) Following The PBGC has not instituted proceedings pursuant to Section 4042 of ERISA to terminate any of the Closing, except ERISA Plans subject to Title IV of ERISA and no condition exists that presents a material risk that such proceedings will be instituted by the PBGC.
(id) None of the ERISA Plans or any trust established thereunder has incurred any "accumulated funding deficiency" (as expressly provided defined in Section 5.11302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each of the ERISA Plans ended prior to the date of this Agreement and no Lien has been imposed under Section 412(n) of the Code or Section 302(f) of ERISA on the assets of the Company or any of its ERISA Affiliates.
(iie) for any payment or benefit that is a Transaction Expense or (iii) for any Sponsored Company Benefit Plan, neither Neither the Company Group nor any Affiliate of the Company Group (applying the principles of clause (b)(ii) of the definition of Affiliate herein) would reasonably be expected their respective ERISA Affiliates maintains or has an obligation to have any Liability with respect contribute to any Seller Benefit a Multiemployer Plan.
(3f) Except as set forth on Section 3.17(cin Schedule 3.22, (i) each of the Seller Disclosure Schedule, since the Lookback Date, each Seller Benefit Plan has been established, maintained and administered in compliance in all material respects in accordance with its terms and applicable Law (including ERISA and the Code). Each Seller Benefit Plan Plans that is intended to be qualified "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination, opinion, or advisory determination letter from the IRS on stating that it is so qualified and (ii) any trust established under an ERISA Plan that is intended to satisfy the requirements of Section 501(c)(9) of the Code has received a determination letter from the IRS stating that it has so satisfied such requirements.
(g) Except as set forth in Schedule 3.22, neither the Company Group nor any of their respective ERISA Affiliates has announced any formal plan or commitment to create any additional Plan or make any material modifications or changes to any existing Plan.
(h) No material liability under Title IV of ERISA or Section 412 of the Code has been incurred by the Company Group or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a material risk to the Company Group or any of their respective ERISA Affiliates of incurring a material liability under such Title, other than liability for contributions to any such ERISA Plans or premiums due the Pension Benefit Guaranty Corporation ("PBGC"), which payments have been made when due with respect to any ERISA Plan.
(i) Neither the Company Group, any of their respective ERISA Affiliates, any of the ERISA Plans, any trust created thereunder nor any trustee, or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the applicable entity is entitled to rely, and, to the Knowledge Company Group or any of Seller, there are no facts or circumstances that their respective ERISA Affiliates would reasonably be expected to cause be subject to any material liability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975(a) or (b), 4976 or 4980B of the loss Code.
(j) Except as set forth in Schedule 3.22, each of the Plans has been operated and administered in all material respects in accordance with applicable Laws, including but not limited to ERISA and the Code.
(k) Except as set forth in Schedule 3.22, the consummation of the transactions contemplated by this Agreement will not (A) entitle any current or former employee or officer of the Company Group to severance pay, unemployment compensation or any other similar termination payment or (B) accelerate the time of payment or vesting, or increase the amount of compensation due any such qualification. employee or officer.
(1) There are no pending or, to the Knowledge of Seller's Knowledge, threatened Proceedings claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits in the normal coursebenefits) with respect to any Seller Benefit Plan, or any trust associated with such plan, that would result in a material Liability to the Company Group. Neither the Company Group nor Seller has engaged in a non-exempt “prohibited transaction” within the meaning of section 406 of ERISA or section 4975 of the Code, and to the Knowledge of Seller, no “prohibited transaction,” within the meaning of section 406 and section 407 of ERISA or section 4975 of the Code, has occurred with respect to any Seller Benefit Plan, in each case, that would result in a material Liability to the Company Group. To the Knowledge of Seller, no fiduciary (within the meaning of Section 3(21) of ERISA) has breached his or her fiduciary duty with respect to any Seller Benefit Plan that would result in a material Liability to the Company Group. All contributions, premiums and other payments required under the terms of each Company Benefit Plan or applicable Laws have been timely made in all material respects in accordance with all applicable Laws and Company Benefit Plan terms.
(4) Except as set forth on Section 3.17(d) of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would could reasonably be expected to, (either alone or in combination with another event) (i) to result in any compensation becoming due, or increase the amount of any compensation due, to any Service Provider, (ii) increase any benefits under any Seller Benefit Plan or (iii) entitle the recipient of any material compensatory payment or compensatory benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefitliability.
(5) Except as set forth on Section 3.17(e) of the Seller Disclosure Schedule, neither the Company nor the Company Subsidiary has any material Liability or obligation to provide post-employment medical or life insurance to any current or former employees of the Company, the Company Subsidiary or Seller or any Affiliate of Seller, except to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar state or local Laws.
(6) No Sponsored Company Benefit Plan is, and neither the Company nor any Person that is under common control with the Company under ERISA 4001(b) or considered a single employer with the Company under Code Sections 414(b), 414(c), 414(m) or 414(o) maintains, contributes to, or has any obligation to contribute to, or has, during the past six years maintained, contributed to, had any obligation to contribute to or otherwise had any material Liability with respect to any, (i) pension plan (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 303 of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or (iii) “multiple employer plan” (as defined in Section 413(c) of the Code).
(7) A list of Service Providers (identified by their employee ID numbers) (such list the “Service Provider Census”), as of the date of this Agreement, has been provided to Purchaser, including, for each such Service Provider, as applicable, his or her (i) employee number, (ii) home country, (iii) home state, (iv) office location, (v) whether such Service Provider is paid hourly or is on salary (including currency of pay), (vi) classification as an exempt- or non-exempt employee under the Fair Labor Standards Act, (vii) hourly rate or annual salary, (viii) 2019 annual incentive bonus award, (ix) bonus target, (x) 2019 actual gross earnings, (xi) 2020 year-to-date earnings as of July 31, 2020, (xii) active status, (xiii) original hire date, (xiv) job title, (xv) service classification and (xvi) whether such employee is full- or part-time.
(8) Each member of the Company Group and, with respect to Service Providers, Seller and each Affiliate of Seller (other than the Company Group) is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws governing the employment of labor, including all contractual commitments and all such Laws.
(9) None of the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller is party to a settlement agreement with a current or former Service Provider since the Lookback Date that involves allegations of sexual harassment. To the Knowledge of Seller, since the Lookback Date, no written claims of sexual harassment have been made against any officer or member of the senior leadership team of the Company with respect to the conduct or alleged conduct of any such Service Provider during such Service Provider’s engagement with the Company, the Company Subsidiary, Seller or an Affiliate of Seller.
(10) (i) No union or other collective bargaining unit or employee organizing entity is certified as representing any of the Service Providers or holds bargaining rights with respect to the Service Providers, (ii) no union or committee or other collective bargaining unit or employee organizing entity is recognized by the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller as representing any of the Service Providers, (iii) to the Knowledge of Seller, there are no threatened or pending union organizing activities involving any Service Providers and (iv) no Consent is required from any union or committee or other collective bargaining unit or employee organizing entity in connection with the transactions contemplated hereby.
(11) (i) There is no, pending, or to the Knowledge of Seller, threatened, Proceeding with respect to labor or employment matters which, if adversely decided, may reasonably be expected, individually or in the aggregate, to create a Liability that would be material to the Company Group, taken as a whole and (ii) the Company, the Company Subsidiary and Seller with respect to Service Providers, have not experienced any labor strike, material slowdown, material work stoppage, or other material labor dispute since the Lookback Date, nor are any pending or, to the Knowledge of Seller, threatened in writing such activities against the Company, the Company Subsidiary or, with respect to Service Providers, Seller or an Affiliate of Seller.
(12) Since the Lookback Date, the Company Group has been in compliance with its obligations under the Workers Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar as it relates to an employer’s obligations in the context of mass layoffs) (the “WARN Act”).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Commonwealth Edison Co)
Employees; Benefit Plans. (1a) Section 3.17(a) of the Seller Disclosure Schedule contains a true, correct and complete list of each Company Benefit Plan and Seller Benefit Plan and indicates whether a Company Benefit Plan is a Sponsored Company Benefit Plan. To the extent applicable, true, correct and complete copies of the following have been made available to Purchaser: (i) the plan document, if any, for each Seller Benefit Plan, including any amendments to the plan document; (ii) the most recent annual report (Form 5500 series), if any, filed with the Internal Revenue Service (“IRS”) or the U.S. Department of Labor with respect to each Company Benefit Plan; (iii) the most recent summary plan description, including any summaries of material modifications for each Company Benefit Plan for which a summary plan description is required; (iv) each trust agreement, insurance policy and any other Contract relating to the funding, investment or administration of such Company Benefit Plan; (v) the most recent determination or opinion letter issued by the IRS with respect to any such Seller Benefit Plan intended to be qualified under Section 401(a) of the Code, if any; and (vi) any material non-routine correspondence with the U.S. Department of Labor, IRS or any other Governmental Authority regarding any such Seller Benefit Plan.
(2b) Following the Closing, except (i) as expressly provided in Section 5.11, (ii) for any payment or benefit that is a Transaction Expense or (iii) for any Sponsored Company Benefit Plan, neither the Company Group nor any Affiliate of the Company Group (applying the principles of clause (b)(ii) of the definition of Affiliate herein) would reasonably be expected to have any Liability with respect to any Seller Benefit Plan.
(3c) Except as set forth on Section 3.17(c) of the Seller Disclosure Schedule, since the Lookback Date, each Seller Benefit Plan has been established, maintained and administered in compliance in all material respects in accordance with its terms and applicable Law (including ERISA and the Code). Each Seller Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination, opinion, or advisory letter from the IRS on which the applicable entity is entitled to rely, and, to the Knowledge of Seller, there are no facts or circumstances that would reasonably be expected to cause the loss of such qualification. There are no pending or, to the Knowledge of Seller, threatened Proceedings (other than routine claims for benefits in the normal course) with respect to any Seller Benefit Plan, or any trust associated with such plan, that would result in a material Liability to the Company Group. Neither the Company Group nor Seller has engaged in a non-exempt “prohibited transaction” within the meaning of section 406 of ERISA or section 4975 of the Code, and to the Knowledge of Seller, no “prohibited transaction,” within the meaning of section 406 and section 407 of ERISA or section 4975 of the Code, has occurred with respect to any Seller Benefit Plan, in each case, that would result in a material Liability to the Company Group. To the Knowledge of Seller, no fiduciary (within the meaning of Section 3(21) of ERISA) has breached his or her fiduciary duty with respect to any Seller Benefit Plan that would result in a material Liability to the Company Group. All contributions, premiums and other payments required under the terms of each Company Benefit Plan or applicable Laws have been timely made in all material respects in accordance with all applicable Laws and Company Benefit Plan terms.
(4d) Except as set forth on Section 3.17(d) of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would reasonably be expected to, (either alone or in combination with another event) (i) result in any compensation becoming due, or increase the amount of any compensation due, to any Service Provider, (ii) increase any benefits under any Seller Benefit Plan or (iii) entitle the recipient of any material compensatory payment or compensatory benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefit.
(5e) Except as set forth on Section 3.17(e) of the Seller Disclosure Schedule, neither the Company nor the Company Subsidiary has any material Liability or obligation to provide post-employment medical or life insurance to any current or former employees of the Company, the Company Subsidiary or Seller or any Affiliate of Seller, except to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar state or local Laws.
(6f) No Sponsored Company Benefit Plan is, and neither the Company nor any Person that is under common control with the Company under ERISA 4001(b) or considered a single employer with the Company under Code Sections 414(b), 414(c), 414(m) or 414(o) maintains, contributes to, or has any obligation to contribute to, or has, during the past six years maintained, contributed to, had any obligation to contribute to or otherwise had any material Liability with respect to any, (i) pension plan (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 303 of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or (iii) “multiple employer plan” (as defined in Section 413(c) of the Code).
(7g) A list of Service Providers (identified by their employee ID numbers) (such list the “Service Provider Census”), as of the date of this Agreement, has been provided to Purchaser, including, for each such Service Provider, as applicable, his or her (i) employee number, (ii) home country, (iii) home state, (iv) office location, (v) whether such Service Provider is paid hourly or is on salary (including currency of pay), (vi) classification as an exempt- or non-exempt employee under the Fair Labor Standards Act, (vii) hourly rate or annual salary, (viii) 2019 annual incentive bonus award, (ix) bonus target, (x) 2019 actual gross earnings, (xi) 2020 year-to-date earnings as of July 31, 2020, (xii) active status, (xiii) original hire date, (xiv) job title, (xv) service classification and (xvi) whether such employee is full- or part-time.
(8) h) Each member of the Company Group and, with respect to Service Providers, Seller and each Affiliate of Seller (other than the Company Group) is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws governing the employment of labor, including all contractual commitments and all such Laws.
(9i) None of the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller is party to a settlement agreement with a current or former Service Provider since the Lookback Date that involves allegations of sexual harassment. To the Knowledge of Seller, since the Lookback Date, no written claims of sexual harassment have been made against any officer or member of the senior leadership team of the Company with respect to the conduct or alleged conduct of any such Service Provider during such Service Provider’s engagement with the Company, the Company Subsidiary, Seller or an Affiliate of Seller.
(10j) (i) No union or other collective bargaining unit or employee organizing entity is certified as representing any of the Service Providers or holds bargaining rights with respect to the Service Providers, (ii) no union or committee or other collective bargaining unit or employee organizing entity is recognized by the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller as representing any of the Service Providers, (iii) to the Knowledge of Seller, there are no threatened or pending union organizing activities involving any Service Providers and (iv) no Consent is required from any union or committee or other collective bargaining unit or employee organizing entity in connection with the transactions contemplated hereby.
(11k) (i) There is no, pending, or to the Knowledge of Seller, threatened, Proceeding with respect to labor or employment matters which, if adversely decided, may reasonably be expected, individually or in the aggregate, to create a Liability that would be material to the Company Group, taken as a whole and (ii) the Company, the Company Subsidiary and Seller with respect to Service Providers, have not experienced any labor strike, material slowdown, material work stoppage, or other material labor dispute since the Lookback Date, nor are any pending or, to the Knowledge of Seller, threatened in writing such activities against the Company, the Company Subsidiary or, with respect to Service Providers, Seller or an Affiliate of Seller.
(12l) Since the Lookback Date, the Company Group has been in compliance with its obligations under the Workers Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar as it relates to an employer’s obligations in the context of mass layoffs) (the “WARN Act”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Employees; Benefit Plans. (1a) Schedule 4.17(a) lists each "employee benefit plan" (as defined in Section 3.17(a3(3) of the Seller Disclosure Schedule contains Employee Retirement Income Security Act of 1974, as amended ("ERISA")) and any other material employee plan or agreement maintained by the Company or HRA (each, a true, correct and complete list of each Company Benefit Plan and Seller Benefit Plan and indicates whether a Company Benefit Plan is a Sponsored "Company Benefit Plan"). To the extent applicable, true, The Company has made available to Parent correct and complete copies of the following have been made available to Purchaser: (i) each Company Benefit Plan (or, in the plan documentcase of any such Company Benefit Plan that is unwritten, if anydescriptions thereof), for each Seller Benefit Plan, including any amendments to the plan document; (ii) the most recent annual report (reports on Form 5500 series), if any, required to be filed with the Internal Revenue Service (“the "IRS”") or the U.S. Department of Labor with respect to each Company Benefit Plan; Plan (if any such report was required), (iii) the most recent summary plan description, including any summaries of material modifications description for each Company Benefit Plan for which a such summary plan description is required; required and (iv) each trust agreement, agreement and insurance policy and any other Contract or group annuity contract relating to the funding, investment or administration of such any Company Benefit Plan; (v) the most recent determination . Each Company Benefit Plan maintained, contributed to or opinion letter issued required to be contributed to by the IRS with respect to any such Seller Benefit Plan intended to be qualified under Section 401(a) of the Code, if any; and (vi) any material non-routine correspondence with the U.S. Department of Labor, IRS Company or any other Governmental Authority regarding any such Seller Benefit Plan.
(2) Following the Closing, except (i) as expressly provided in Section 5.11, (ii) for any payment or benefit that is a Transaction Expense or (iii) for any Sponsored Company Benefit Plan, neither the Company Group nor any Affiliate of the Company Group (applying the principles of clause (b)(ii) of the definition of Affiliate herein) would reasonably be expected to have any Liability with respect to any Seller Benefit Plan.
(3) Except as set forth on Section 3.17(c) of the Seller Disclosure Schedule, since the Lookback Date, each Seller Benefit Plan its Subsidiaries has been established, maintained and administered in compliance in all material respects in accordance with its terms and applicable Law (including ERISA terms. The Company, HRA and the Code). Each Seller Company Benefit Plan Plans are in material compliance with the applicable provisions of ERISA, the Code and all other applicable Laws.
(b) All Company Benefit Plans that is are "employee pension plans" (as defined in Section 3(3) of ERISA) that are intended to be tax qualified within the meaning of under Section 401(a) of the Code has received (each, a favorable determination"Company Pension Plan") that are maintained, opinion, contributed to or advisory letter from required to be contributed to by the IRS on which the applicable entity is entitled to rely, Company or HRA are so qualified and, to the Knowledge of Sellerthe Company, there are no facts event has occurred since the date of the most recent determination letter or circumstances application therefor relating to any such Company Pension Plan that would reasonably be expected to cause adversely affect the loss qualification of such qualificationCompany Pension Plan. There are no pending or, The Company has made available to Parent a correct and complete copy of the Knowledge of Seller, threatened Proceedings (other than routine claims for benefits in the normal course) most recent determination letter received with respect to any Seller Benefit Planeach Company Pension Plan maintained, contributed to or any trust associated with such plan, that would result in a material Liability required to be contributed to by the Company Group. Neither the Company Group nor Seller has engaged in or HRA, as well as a non-exempt “prohibited transaction” within the meaning correct and complete copy of section 406 of ERISA or section 4975 of the Codeeach pending application for a determination letter, and to the Knowledge of Seller, no “prohibited transaction,” within the meaning of section 406 and section 407 of ERISA or section 4975 of the Code, has occurred with respect to any Seller Benefit Plan, in each case, that would result in a material Liability to the Company Group. To the Knowledge of Seller, no fiduciary if any.
(within the meaning of Section 3(21c) of ERISA) has breached his or her fiduciary duty with respect to any Seller Benefit Plan that would result in a material Liability to the Company Group. All contributions, premiums and other benefit payments under or in connection with the Company Benefit Plans that are required under to have been made as of the date hereof in accordance with the terms of each the Company Benefit Plan or applicable Laws Plans have been timely made or have been reflected on the most recent Financial Statements. No Company Pension Plan has an "accumulated funding deficiency" (as such term is defined in all material respects in accordance with all applicable Laws and Company Benefit Plan terms.
(4) Except as set forth on Section 3.17(d) of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would reasonably be expected to, (either alone or in combination with another event) (i) result in any compensation becoming due, or increase the amount of any compensation due, to any Service Provider, (ii) increase any benefits under any Seller Benefit Plan or (iii) entitle the recipient of any material compensatory payment or compensatory benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefit.
(5) Except as set forth on Section 3.17(e) of the Seller Disclosure Schedule, neither the Company nor the Company Subsidiary has any material Liability or obligation to provide post-employment medical or life insurance to any current or former employees of the Company, the Company Subsidiary or Seller or any Affiliate of Seller, except to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar state or local Laws.
(6) No Sponsored Company Benefit Plan is, and neither the Company nor any Person that is under common control with the Company under ERISA 4001(b) or considered a single employer with the Company under Code Sections 414(b), 414(c), 414(m) or 414(o) maintains, contributes to, or has any obligation to contribute to, or has, during the past six years maintained, contributed to, had any obligation to contribute to or otherwise had any material Liability with respect to any, (i) pension plan (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 303 302 of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or (iii) “multiple employer plan” (as defined in Section 413(c) of the Code).
(7) A list of Service Providers (identified by their employee ID numbers) (such list the “Service Provider Census”), as of the date of this Agreement, has been provided to Purchaser, including, for each such Service Provider, as applicable, his whether or her (i) employee number, (ii) home country, (iii) home state, (iv) office location, (v) whether such Service Provider is paid hourly or is on salary (including currency of pay), (vi) classification as an exempt- or non-exempt employee under the Fair Labor Standards Act, (vii) hourly rate or annual salary, (viii) 2019 annual incentive bonus award, (ix) bonus target, (x) 2019 actual gross earnings, (xi) 2020 year-to-date earnings as of July 31, 2020, (xii) active status, (xiii) original hire date, (xiv) job title, (xv) service classification and (xvi) whether such employee is full- or part-timenot waived.
(8) Each member of the Company Group and, with respect to Service Providers, Seller and each Affiliate of Seller (other than the Company Group) is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws governing the employment of labor, including all contractual commitments and all such Laws.
(9) None of the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller is party to a settlement agreement with a current or former Service Provider since the Lookback Date that involves allegations of sexual harassment. To the Knowledge of Seller, since the Lookback Date, no written claims of sexual harassment have been made against any officer or member of the senior leadership team of the Company with respect to the conduct or alleged conduct of any such Service Provider during such Service Provider’s engagement with the Company, the Company Subsidiary, Seller or an Affiliate of Seller.
(10) (i) No union or other collective bargaining unit or employee organizing entity is certified as representing any of the Service Providers or holds bargaining rights with respect to the Service Providers, (ii) no union or committee or other collective bargaining unit or employee organizing entity is recognized by the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller as representing any of the Service Providers, (iii) to the Knowledge of Seller, there are no threatened or pending union organizing activities involving any Service Providers and (iv) no Consent is required from any union or committee or other collective bargaining unit or employee organizing entity in connection with the transactions contemplated hereby.
(11) (i) There is no, pending, or to the Knowledge of Seller, threatened, Proceeding with respect to labor or employment matters which, if adversely decided, may reasonably be expected, individually or in the aggregate, to create a Liability that would be material to the Company Group, taken as a whole and (ii) the Company, the Company Subsidiary and Seller with respect to Service Providers, have not experienced any labor strike, material slowdown, material work stoppage, or other material labor dispute since the Lookback Date, nor are any pending or, to the Knowledge of Seller, threatened in writing such activities against the Company, the Company Subsidiary or, with respect to Service Providers, Seller or an Affiliate of Seller.
(12) Since the Lookback Date, the Company Group has been in compliance with its obligations under the Workers Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar as it relates to an employer’s obligations in the context of mass layoffs) (the “WARN Act”).
Appears in 1 contract
Employees; Benefit Plans. (1a) Section 3.17(a) of the Seller Disclosure Schedule 3.22 contains a true, correct true and complete list of each any Employee Benefit Plans maintained or contributed to or required to be contributed to by the Company for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the “Plans”). No member of the Company Group (other than the Company) maintains or contributes to or is required to contribute to any Employee Benefit Plan and Seller for the benefit of any employee or former employee of the Company Group or any of their ERISA Affiliates. Schedule 3.22 identifies each of the Plans that is an Employee Welfare Benefit Plan, or Employee Pension Benefit Plan and indicates whether a Company Benefit Plan is a Sponsored Company Benefit Plan. To (such plans being hereinafter referred to collectively as the extent applicable“ERISA Plans”).
(b) With respect to each of the Plans, true, correct Seller has heretofore delivered or made available to the Buyer true and complete copies of each of the following have been made available to Purchaserdocuments: (i) a copy of the plan document, if any, Plan documents (including all amendments thereto) for each Seller Benefit written Plan, including any amendments to the plan document; (ii) a copy of the most recent annual report (Form 5500 series), if any, filed with the or Internal Revenue Service (“IRS”) or the U.S. Department of Labor Form 5500 Series, if required under ERISA, with respect to each Company Benefit Plansuch Plan for the last Plan year ending prior to the date of this Agreement for which such a report was filed; (iii) a copy of the most recent summary plan descriptionactuarial report, including any summaries of material modifications for if required under ERISA, with respect to each Company Benefit such Plan for which a summary plan description is requiredthe last Plan year ending prior to the date of this Agreement; (iv) each trust agreementa copy of the most recent Summary Plan Description (“SPD”), insurance policy and any other Contract relating together with all summaries of material modification issued subsequent to the funding, investment or administration date of such Company Benefit SPD, required under ERISA with respect to such Plan; and (v) the most recent determination or opinion letter issued by received from the IRS with respect to any such Seller Benefit each Plan that is intended to be qualified under Section 401(a) of the Code, if any; and (vi) any material non-routine correspondence with the U.S. Department of Labor, IRS or any other Governmental Authority regarding any such Seller Benefit Plan.
(2c) Following The PBGC has not instituted proceedings pursuant to Section 4042 of ERISA to terminate any of the Closing, except ERISA Plans subject to Title IV of ERISA and no condition exists that presents a material risk that such proceedings will be instituted by the PBGC.
(id) None of the ERISA Plans or any trust established thereunder has incurred any “accumulated funding deficiency” (as expressly provided defined in Section 5.11302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each of the ERISA Plans ended prior to the date of this Agreement and no Lien has been imposed under Section 412(n) of the Code or Section 302(f) of ERISA on the assets of the Company or any of its ERISA Affiliates.
(iie) for any payment or benefit that is a Transaction Expense or (iii) for any Sponsored Company Benefit Plan, neither Neither the Company Group nor any Affiliate of the Company Group (applying the principles of clause (b)(ii) of the definition of Affiliate herein) would reasonably be expected their respective ERISA Affiliates maintains or has an obligation to have any Liability with respect contribute to any Seller Benefit a Multiemployer Plan.
(3f) Except as set forth on Section 3.17(cin Schedule 3.22, (i) each of the Seller Disclosure Schedule, since the Lookback Date, each Seller Benefit Plan has been established, maintained and administered in compliance in all material respects in accordance with its terms and applicable Law (including ERISA and the Code). Each Seller Benefit Plan Plans that is intended to be qualified “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination, opinion, or advisory determination letter from the IRS on stating that it is so qualified and (ii) any trust established under an ERISA Plan that is intended to satisfy the requirements of Section 501(c)(9) of the Code has received a determination letter from the IRS stating that it has so satisfied such requirements.
(g) Except as set forth in Schedule 3.22, neither the Company Group nor any of their respective ERISA Affiliates has announced any formal plan or commitment to create any additional Plan or make any material modifications or changes to any existing Plan.
(h) No material liability under Title IV of ERISA or Section 412 of the Code has been incurred by the Company Group or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a material risk to the Company Group or any of their respective ERISA Affiliates of incurring a material liability under such Title, other than liability for contributions to any such ERISA Plans or premiums due the Pension Benefit Guaranty Corporation (“PBGC”), which payments have been made when due with respect to any ERISA Plan.
(i) Neither the Company Group, any of their respective ERISA Affiliates, any of the ERISA Plans, any trust created thereunder nor any trustee, or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the applicable entity is entitled to rely, and, to the Knowledge Company Group or any of Seller, there are no facts or circumstances that their respective ERISA Affiliates would reasonably be expected to cause be subject to any material liability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975(a) or (b), 4976 or 4980B of the loss Code.
(j) Except as set forth in Schedule 3.22, each of the Plans has been operated and administered in all material respects in accordance with applicable Laws, including but not limited to ERISA and the Code.
(k) Except as set forth in Schedule 3.22, the consummation of the transactions contemplated by this Agreement will not (A) entitle any current or former employee or officer of the Company Group to severance pay, unemployment compensation or any other similar termination payment or (B) accelerate the time of payment or vesting, or increase the amount of compensation due any such qualification. employee or officer.
(l) There are no pending or, to the Knowledge of Seller’s Knowledge, threatened Proceedings claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits in the normal coursebenefits) with respect to any Seller Benefit Plan, or any trust associated with such plan, that would result in a material Liability to the Company Group. Neither the Company Group nor Seller has engaged in a non-exempt “prohibited transaction” within the meaning of section 406 of ERISA or section 4975 of the Code, and to the Knowledge of Seller, no “prohibited transaction,” within the meaning of section 406 and section 407 of ERISA or section 4975 of the Code, has occurred with respect to any Seller Benefit Plan, in each case, that would result in a material Liability to the Company Group. To the Knowledge of Seller, no fiduciary (within the meaning of Section 3(21) of ERISA) has breached his or her fiduciary duty with respect to any Seller Benefit Plan that would result in a material Liability to the Company Group. All contributions, premiums and other payments required under the terms of each Company Benefit Plan or applicable Laws have been timely made in all material respects in accordance with all applicable Laws and Company Benefit Plan terms.
(4) Except as set forth on Section 3.17(d) of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would could reasonably be expected to, (either alone or in combination with another event) (i) to result in any compensation becoming due, or increase the amount of any compensation due, to any Service Provider, (ii) increase any benefits under any Seller Benefit Plan or (iii) entitle the recipient of any material compensatory payment or compensatory benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefitliability.
(5) Except as set forth on Section 3.17(e) of the Seller Disclosure Schedule, neither the Company nor the Company Subsidiary has any material Liability or obligation to provide post-employment medical or life insurance to any current or former employees of the Company, the Company Subsidiary or Seller or any Affiliate of Seller, except to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar state or local Laws.
(6) No Sponsored Company Benefit Plan is, and neither the Company nor any Person that is under common control with the Company under ERISA 4001(b) or considered a single employer with the Company under Code Sections 414(b), 414(c), 414(m) or 414(o) maintains, contributes to, or has any obligation to contribute to, or has, during the past six years maintained, contributed to, had any obligation to contribute to or otherwise had any material Liability with respect to any, (i) pension plan (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 303 of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or (iii) “multiple employer plan” (as defined in Section 413(c) of the Code).
(7) A list of Service Providers (identified by their employee ID numbers) (such list the “Service Provider Census”), as of the date of this Agreement, has been provided to Purchaser, including, for each such Service Provider, as applicable, his or her (i) employee number, (ii) home country, (iii) home state, (iv) office location, (v) whether such Service Provider is paid hourly or is on salary (including currency of pay), (vi) classification as an exempt- or non-exempt employee under the Fair Labor Standards Act, (vii) hourly rate or annual salary, (viii) 2019 annual incentive bonus award, (ix) bonus target, (x) 2019 actual gross earnings, (xi) 2020 year-to-date earnings as of July 31, 2020, (xii) active status, (xiii) original hire date, (xiv) job title, (xv) service classification and (xvi) whether such employee is full- or part-time.
(8) Each member of the Company Group and, with respect to Service Providers, Seller and each Affiliate of Seller (other than the Company Group) is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws governing the employment of labor, including all contractual commitments and all such Laws.
(9) None of the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller is party to a settlement agreement with a current or former Service Provider since the Lookback Date that involves allegations of sexual harassment. To the Knowledge of Seller, since the Lookback Date, no written claims of sexual harassment have been made against any officer or member of the senior leadership team of the Company with respect to the conduct or alleged conduct of any such Service Provider during such Service Provider’s engagement with the Company, the Company Subsidiary, Seller or an Affiliate of Seller.
(10) (i) No union or other collective bargaining unit or employee organizing entity is certified as representing any of the Service Providers or holds bargaining rights with respect to the Service Providers, (ii) no union or committee or other collective bargaining unit or employee organizing entity is recognized by the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller as representing any of the Service Providers, (iii) to the Knowledge of Seller, there are no threatened or pending union organizing activities involving any Service Providers and (iv) no Consent is required from any union or committee or other collective bargaining unit or employee organizing entity in connection with the transactions contemplated hereby.
(11) (i) There is no, pending, or to the Knowledge of Seller, threatened, Proceeding with respect to labor or employment matters which, if adversely decided, may reasonably be expected, individually or in the aggregate, to create a Liability that would be material to the Company Group, taken as a whole and (ii) the Company, the Company Subsidiary and Seller with respect to Service Providers, have not experienced any labor strike, material slowdown, material work stoppage, or other material labor dispute since the Lookback Date, nor are any pending or, to the Knowledge of Seller, threatened in writing such activities against the Company, the Company Subsidiary or, with respect to Service Providers, Seller or an Affiliate of Seller.
(12) Since the Lookback Date, the Company Group has been in compliance with its obligations under the Workers Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar as it relates to an employer’s obligations in the context of mass layoffs) (the “WARN Act”).
Appears in 1 contract
Employees; Benefit Plans. (1a) Section 3.17(a3.20(a) of the Seller Disclosure Schedule contains lists each (i) material Employee Benefit Plan that any Company maintains, or has maintained, or to which any Company contributes to, or has or could otherwise have any obligation or liability (ii) each retention, incentive, change in control, profit sharing, deferred compensation, employment savings or pension plan or agreement sponsored by any of the Companies or to which any of the Companies is a trueparty, correct and complete list of (iii) each material Transferred Plan, in each case with respect to the Covered Employees (the "Company Plans"). The Companies have no commitments or current plans to establish or enter into any new Company Plan or to modify any Company Plan other than as required by applicable Laws. With respect to each Company Plan:
(i) Such plan has been established, maintained, funded and administered in accordance with the terms of such plan and complies in form and in operation in all material respects with all applicable requirements of ERISA, the Code and other applicable law.
(ii) All required reports and descriptions (including Form 5500 annual reports), summary annual reports, and summary plan descriptions) have been timely filed and/or distributed in accordance with the applicable requirements of ERISA and the Code in all material respects.
(iii) Such plan, if intended to meet the requirements of a "qualified plan" under Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service that such plan is so qualified, and, to Seller's Knowledge, no event has occurred that would result in the loss of such qualified status.
(iv) Except as set forth in Section 3.20(a)(iv) of the Disclosure Schedule, none of the Companies or its ERISA Affiliates has maintained, established, sponsored, participated in, contributed to, or otherwise incurred any liability under any: (i) Employee Benefit Plan subject to Title IV of ERISA or Code Section 412 or (ii) "multiemployer plan" within the meaning of Section (3)(37) of ERISA. No Company has incurred any liability under Title IV of ERISA or Code Section 412. With respect to any "defined benefit plan" within the meaning of Section 3(35) of ERISA set forth in Section 3.20(a)(iv) of the Disclosure Schedule: (A) no liability to the Pension Benefit Guaranty Corporation ("PBGC") has been incurred (other than for premiums not yet due); (B) no notice of intent to terminate any such plan has been filed with the PBGC or distributed to participants and no amendment terminating any such plan has been adopted; (C) no proceedings to terminate any such plan have been instituted by the PBGC and no event or condition has occurred which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; (D) no "accumulated funding deficiency," within the meaning of Section 302 of ERISA or Section 412 of the Code, whether or not waived, has been incurred; (E) no "reportable event" within the meaning of Section 4043 of ERISA (for which the 30-day notice requirement has not been waived by the PBGC) has occurred within the last six years; (F) no Lien has arisen under ERISA or the Code on the assets of any Company or ERISA Affiliate; (G) there has been no cessation of operations at a facility subject to the provisions of Section 4062(e) of ERISA within the last six years; and (H) no event has occurred that places participants on actual or constructive notice of the plan's termination. With respect to any multiemployer plan under Section 3(37) of ERISA set forth in Section 3.20(a)(iv) of the Disclosure Schedule: (A) no Company or ERISA Affiliate has experienced a complete or partial withdrawal from such multiemployer plan, and (B) no Company or ERISA Affiliate has been notified by any such multiemployer plan that such multiemployer plan is currently in reorganization or insolvency under and within the meaning of Section 4241 or 4245 of ERISA or that such multiemployer plan intends to terminate or has been terminated under Section 4041A of ERISA.
(v) Seller Benefit Plan and indicates whether a Company Benefit Plan is a Sponsored Company Benefit Plan. To the extent applicable, true, has made available to Buyer correct and complete copies of the following have been made available to Purchaserof: (i) all documents setting forth the plan document, if any, for terms of each Seller Benefit Company Plan, including the plan document and any amendments to the plan documentthereto; (ii) the most recent annual report (Form 5500 series)summary plan description together with the summaries of material modifications thereto, if any, filed with the Internal Revenue Service (“IRS”) or the U.S. Department of Labor with respect to each Company Benefit Planrequired under ERISA; (iii) the most recent summary plan description, including any summaries of material modifications for each Company Benefit Plan for which a summary plan description is required; (iv) each trust agreement, insurance policy and any other Contract relating to the funding, investment or administration of such Company Benefit Plan; (v) the most recent IRS determination or opinion letter issued by the IRS with respect to any such Seller Benefit each Company Plan intended to be qualified under Section 401(a) of the Code; (iv) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or the Code; and (viv) all correspondence to or from any material non-routine correspondence with the U.S. Department of Labor, IRS or Governmental Entity relating to any other Governmental Authority regarding any such Seller Benefit Company Plan.
(2vi) Following the Closing, except (i) as expressly provided in Section 5.11, (ii) for any payment or benefit that is a Transaction Expense or (iii) for any Sponsored Company Benefit Plan, neither the Company Group nor any Affiliate of the Company Group (applying the principles of clause (b)(ii) of the definition of Affiliate herein) would reasonably be expected to have any Liability with respect to any Seller Benefit Plan.
(3) Except as set forth on Section 3.17(c) of the Seller Disclosure Schedule, since the Lookback Date, each Seller Benefit Plan has been established, maintained and administered in compliance in all No material respects in accordance with its terms and applicable Law (including ERISA and the Code). Each Seller Benefit Plan that is intended to be qualified "prohibited transaction," within the meaning of Section 401(a) 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has received a favorable determination, opinion, or advisory letter from the IRS on which the applicable entity is entitled to rely, occurred and, to the Knowledge of Seller, there are no facts or circumstances that would reasonably be expected to cause the loss of such qualification. There are no pending or, to the Knowledge of Seller, threatened Proceedings (other than routine claims for benefits in the normal course) with respect to any Seller Benefit Plan, or any trust associated with such plan, that would result in a material Liability to the Company Group. Neither the Company Group nor Seller has engaged in a non-exempt “prohibited transaction” within the meaning of section 406 of ERISA or section 4975 of the Code, and to the Knowledge of Seller, no “prohibited transaction,” within the meaning of section 406 and section 407 of ERISA or section 4975 of the Code, has occurred with respect to any Seller Benefit Plan, in each case, that would result in a material Liability to the Company Group. To the Knowledge of Seller's Knowledge, no fiduciary (within the meaning of Section 3(21) of ERISA) of any Company Plan subject to Part 4 of Title I of ERISA has breached his or her committed a breach of fiduciary duty that could subject the Companies to material liability taken as a whole. There are no claims or proceedings pending, or, to Seller's Knowledge, threatened or reasonably anticipated (other than routine claims for benefits), against any Company Plan or against the Companies with respect to any Seller Benefit Plan that would result in a material Liability Company Plan. There are no audits, inquiries or proceedings pending or, to Seller's Knowledge, threatened by the IRS, DOL, or the PBGC with respect to any Company Group. All contributions, premiums and other payments required under the terms of each Company Benefit Plan or applicable Laws have been timely made in all material respects in accordance with all applicable Laws and Company Benefit Plan termsPlan.
(4vii) Except as set forth on With respect to each Company Plan which is an employee welfare benefit plan (within the meaning of Section 3.17(d3(1) of ERISA), all claims incurred by any Company are (i) insured pursuant to a contract of insurance whereby the Seller Disclosure Scheduleinsurance company bears any risk of loss with respect to such claims; (ii) covered under a contract with a health maintenance organization (an "HMO") pursuant to which the HMO bears the liability for claims or (iii) reflected as a liability or accrued for on the Financial Statements.
(viii) No Company Plan provides (except at no cost to any Company), neither or reflects or represents any liability of the Companies to provide, retiree life insurance, retiree health benefits or other retiree employee welfare benefits to any Person for any reason, except as may be required by Part 6 of Title I of ERISA or other applicable laws.
(ix) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would reasonably be expected towill (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Plan, that will or may result (either alone or in combination connection with another any other circumstance or event) (i) result in any compensation becoming duepayment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or increase the amount of any compensation due, obligation to any Service Provider, (ii) increase any fund benefits under any Seller Benefit Plan or (iii) entitle the recipient of any material compensatory payment or compensatory benefit to receive a “gross up” payment for any income or other Taxes that might be owed with respect to such payment or benefitany Covered Employee.
(5b) Except as set forth on Section 3.17(e) of the Seller Disclosure Schedule, neither the Company nor the Company Subsidiary has any material Liability or obligation to provide post-employment medical or life insurance to any current or former employees of the Company, the Company Subsidiary or Seller or any Affiliate of Seller, except to To the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985 or that any similar state or local Laws.
(6) No Sponsored Company Benefit Plan is, and neither the Company nor any Person that is under common control with the Company under ERISA 4001(b) or considered constitutes a single employer with the Company under Code Sections 414(b), 414(c), 414(m) or 414(o) maintains, contributes to, or has any obligation to contribute to, or has, during the past six years maintained, contributed to, had any obligation to contribute to or otherwise had any material Liability with respect to any, (i) pension plan ("non-qualified deferred compensation plan" within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 303 of ERISA or Section 412 409A of the Code, such Plan has been operated in reasonable good faith compliance with Section 409A of the Code and IRS Notice 2005-1.
(iic) “multiemployer plan” (Except as defined in disclosed on Section 3(37) or 4001(a)(3) of ERISA) or (iii) “multiple employer plan” (as defined in Section 413(c3.20(c) of the Code)Disclosure Schedule, none of the Companies maintains any Company Plan subject to laws other than those of the United States.
(7d) A list of Service Providers (identified by their employee ID numbers) (such list Notwithstanding anything to the “Service Provider Census”)contrary set forth herein, as of the date of representations and warranties set forth in this Agreement, has been provided to Purchaser, including, for each such Service Provider, as applicable, his or her (i) employee number, (ii) home country, (iii) home state, (iv) office location, (v) whether such Service Provider is paid hourly or is on salary (including currency of pay), (vi) classification as an exempt- or non-exempt employee under Section 3.20 are the Fair Labor Standards Act, (vii) hourly rate or annual salary, (viii) 2019 annual incentive bonus award, (ix) bonus target, (x) 2019 actual gross earnings, (xi) 2020 year-to-date earnings as of July 31, 2020, (xii) active status, (xiii) original hire date, (xiv) job title, (xv) service classification exclusive representations and (xvi) whether such employee is full- or part-time.
(8) Each member of the Company Group and, with respect to Service Providers, Seller and each Affiliate warranties of Seller (other than the Company Group) is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws governing the employment of labor, including all contractual commitments and all such Lawsregarding employee benefit matters.
(9) None of the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller is party to a settlement agreement with a current or former Service Provider since the Lookback Date that involves allegations of sexual harassment. To the Knowledge of Seller, since the Lookback Date, no written claims of sexual harassment have been made against any officer or member of the senior leadership team of the Company with respect to the conduct or alleged conduct of any such Service Provider during such Service Provider’s engagement with the Company, the Company Subsidiary, Seller or an Affiliate of Seller.
(10) (i) No union or other collective bargaining unit or employee organizing entity is certified as representing any of the Service Providers or holds bargaining rights with respect to the Service Providers, (ii) no union or committee or other collective bargaining unit or employee organizing entity is recognized by the Company Group or, with respect to Service Providers, Seller or an Affiliate of Seller as representing any of the Service Providers, (iii) to the Knowledge of Seller, there are no threatened or pending union organizing activities involving any Service Providers and (iv) no Consent is required from any union or committee or other collective bargaining unit or employee organizing entity in connection with the transactions contemplated hereby.
(11) (i) There is no, pending, or to the Knowledge of Seller, threatened, Proceeding with respect to labor or employment matters which, if adversely decided, may reasonably be expected, individually or in the aggregate, to create a Liability that would be material to the Company Group, taken as a whole and (ii) the Company, the Company Subsidiary and Seller with respect to Service Providers, have not experienced any labor strike, material slowdown, material work stoppage, or other material labor dispute since the Lookback Date, nor are any pending or, to the Knowledge of Seller, threatened in writing such activities against the Company, the Company Subsidiary or, with respect to Service Providers, Seller or an Affiliate of Seller.
(12) Since the Lookback Date, the Company Group has been in compliance with its obligations under the Workers Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar as it relates to an employer’s obligations in the context of mass layoffs) (the “WARN Act”).
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