Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees. (b) Neither Abraxas nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan. (c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”). (d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code. (e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 4 contracts
Samples: Merger Agreement (Abraxas Petroleum Corp), Merger Agreement (Abraxas Petroleum Corp), Merger Agreement (Abraxas Petroleum Corp)
Employees; Employee Benefits. (a) Abraxas The Project Company does not have, and on the Closing Date will not have, any employees. The Project Company has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened liabilities or obligations with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement Employees or any other agreement relating to individuals (including, but not limited to, contract workers, lease employees or temporary employees) that have performed work at or in connection with the right of any such individual to be employed by, Facility or to contract with, each of Abraxas and its Subsidiaries because in connection with the business of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesProject Company.
(b) Neither Abraxas nor The Project Company does not sponsor and has not in the past sponsored any of its Subsidiaries is delinquent in payments Employee Plans. The Project Company has no liability or obligation with respect to any Employee Plans of its employeesany ERISA Affiliate.
(c) Except as set forth on Section 5.12(c) of the Seller’s Disclosure Schedule, consultantsno Employee is covered by an employment agreement or any other contractual obligation to continue employment with either the Seller or any Affiliate of the Seller.
(d) None of the Project Company, the Seller or any Affiliate of the Seller has made any commitments or representations to any Person regarding (i) employment by the Purchaser at the Facility after the Closing Date, (ii) any benefits to be provided by the Purchaser or Affiliates of the Purchaser after the Closing Date, or independent contractors for (iii) any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it terms and conditions of employment by the Purchaser following the Closing Date.
(e) With respect to the date hereof Employees, the Project Company, the Seller and all Affiliates of the Seller are in compliance with the Worker Adjustment and Retraining Notification Act (the “WARN Act”), if applicable, and the Project Company, the Seller or amounts Affiliates of the Seller have provided all affected Employees with all notices, if any, required to be reimbursed to such employeesunder the WARN Act within the time periods required by the WARN Act.
(f) Except as set forth in Section 5.12(f) of the Seller’s Disclosure Schedule, consultantsthe Project Company, or independent contractors. Each the Seller and all Affiliates of Abraxas and its Subsidiaries has the Seller have complied in all material respects with (i) all applicable state Applicable Laws relating to the employment of the Employees, including terms and federal conditions of employment, equal employment opportunity laws and with other laws related to employmentopportunity, including those related to nondiscrimination, immigration, wages, hours, worker classificationbenefits and other employment practices, collective bargaining, and the payment of social security and withholding of taxes similar Taxes and other sums as required by law occupational safety and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planhealth.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Alabama Power Co), Purchase and Sale Agreement (Southern Power Co)
Employees; Employee Benefits. (a) Abraxas Company has no collective bargaining agreements provided or made available to Investor true, complete and correct copies of each material Company Benefit Plan. Each Company Benefit Plan has been maintained and administered at all times in material compliance with any its terms and all applicable Laws. All contributions required by applicable Law to have been made by Company or its Subsidiaries as of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened the Effective Date with respect to Abraxas. To Abraxas’ knowledge, no employee each Company Benefit Plan in respect of each of Abraxas and its Subsidiaries, nor any consultant current or prior plan years have been made or such contributions have been accrued in accordance with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesGAAP.
(b) Neither Abraxas nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery ofby Company of this Agreement or any other Transaction Document, and performance nor the consummation by Company of the transactions contemplated in, this Agreement will not hereby and thereby (either alone or upon the occurrence of in combination with any additional or subsequent eventsother event) would: (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether becoming due, or increase the amount of severance pay any compensation or otherwise)benefits due, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director employee of Company or independent contractor of each of Abraxas and its Subsidiaries or with respect to any Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the triggering acceleration of the time of payment or imposition vesting of any restrictions such compensation or limitations on benefits; (iv) trigger the right funding of each any compensation or benefits due to any current or former employee of Abraxas and Company or its Subsidiaries to amend or terminate any Benefit Plan Subsidiaries; (or v) result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) 280G of the CodeCode pursuant to any Company Benefit Plan or other plan or agreement as in effect on the date of this Agreement; or (vi) trigger the ability of any employee of Company to terminate his or her employment for “good reason” in connection therewith.
(ec) There is are no complaints, charges or claims against Company or any of its Subsidiaries pending litigationor, auditto knowledge of Company, investigation threatened that are reasonably likely to be brought or other proceeding filed, with any Governmental Authority based on, arising out of, in connection with or otherwise relating to any Benefit Plan the employment or to the employmentservices, termination of employmentemployment of services, compensation or employee benefits failure to employ or retain any individual. Each of any current or former employee, director or independent contractor nor, Company and its Subsidiaries is in compliance in all material respects with all applicable Laws relating to the knowledge employment of Abraxaslabor.
(d) Neither Company nor any of its Subsidiaries is a party to or bound by any union contract or collective bargaining agreement, is or has experienced any such litigationstrike, auditgrievance or any arbitration proceeding, investigation claim of unfair labor practices filed or threatened to be filed or any other proceeding threatenedmaterial labor difficulty.
Appears in 2 contracts
Samples: Share Purchase Agreement (NCR Corp), Share Purchase Agreement (Document Capture Technologies, Inc.)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending orBuyer shall, or shall ---------------------------- cause the Bank, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee provide employees of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement the Company or any other agreement relating Company Subsidiary who commence employment with Buyer or the Bank after the effective time of the Merger ("Transferred Employees") with participation in the employee benefit plans, programs and arrangements of Buyer or Bank, as applicable (the "Buyer Plans"), on the same terms as such plans and benefits are offered to similarly situated employees of Buyer or Bank, as applicable. Buyer shall recognize, or shall cause the right Bank to recognize, each Transferred Employee's service with the Company or any Company Subsidiary for purposes of determining eligibility to participate in and vesting under the Buyer Plans, but not for purposes of benefit accruals under any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesplans.
(b) Neither Abraxas nor Buyer will, and will cause the Company or a Company Subsidiary to, give Transferred Employees full credit for purposes of eligibility, vesting, and determination of the level of benefits under any employee benefit plans or arrangements maintained by the Buyer, the Company or a Company Subsidiary (but not for purposes of its Subsidiaries is delinquent in payments to benefit accruals under any of its employees, consultantsretirement plan maintained by, or independent contractors contributed to by, any such entity) for such Transferred Employees' service with the Company or any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it Company Subsidiary to the date hereof same extent recognized by the Company or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating any Company Subsidiary immediately prior to the Benefit PlansClosing Date. Each of Abraxas and its Subsidiaries has withheld and paid to Without limiting the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any generality of the foregoing, Buyer will, or will cause the Company or a Company Subsidiary to recognize such Transferred Employees' service with the Company or a Company Subsidiary for purposes of participation in any retirement, disability, medical insurance, tuition reimbursement, vacation pay accrual and sick leave plans, policies, programs or arrangements (but not for purposes of benefit accruals under any retirement plan maintained by, or contributed to by, any such entity). The only “employee pension benefit plan” Buyer agrees to take all actions necessary and appropriate to remove any age restrictions contained in any qualified retirement plan maintained by Buyer (within "Buyer Pension Plans") which would, if not removed, prevent Transferred Employees who were eligible to participate in the meaning Savings Plan as of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planthe Closing Date from participating in such Buyer Pension Plan.
(c) None Buyer agrees that (i) prior to the Closing Date and continuing through December 31, 1998, employees of the Benefit Plans Company and each Company Subsidiary shall continue to accrue vacation in accordance with the existing vacation policy of the Company and each Company Subsidiary (and during the period from the Closing Date until December 31, 1998, Buyer shall honor such accruals) and subsequent to December 31, 1998, such employees shall be subject to Buyer's vacation policy, as in effect at such time, including for purposes of determining carryover of accrued vacation days from year to year; provided, -------- however, Buyer shall allow Transferred Employees to carry forward into calendar ------- year 1999 under Buyer's vacation policy up to five (5) days of vacation accrued under the vacation policy of the Company and each Company Subsidiary to the extent such accrued vacation is not used prior to January 1, 1999. Buyer, the Company and each Company Subsidiary shall permit each Transferred Employee to take all accrued vacation prior to January 1, 1999.
(d) Seller shall be responsible for the payment of any severance obligations, including, but not limited to, any amounts to be paid or payable under any employment or severance agreement or arrangement in effect as of the Closing, with respect to (i) any Company Employee who is not a “multiemployer plan” as such term Transferred Employee, and (ii) those Transferred Employees listed on a schedule to be provided to Seller by Buyer at or prior to the Closing (each an "Interim Employee), provided, however, that Seller shall be responsible only for the -------- ------- payment of severance to Interim Employees whose employment with Buyer, the Company or a Company Subsidiary terminates prior to October 31, 1998. Buyer shall be responsible for the payment of all other severance obligations with respect to Transferred Employees (including Interim Employees) and, without limiting the generality of the foregoing, Buyer shall provide the severance payments set forth on Schedule 6.3 to any Transferred Employee (other than an Interim Employee whose employment with Buyer, the Company or a Company Subsidiary terminates prior to October 31, 1998) whose employment with Buyer, the Company, or a Company Subsidiary is defined involuntarily terminated (other than for cause) during the 180-day period following the Closing Date.
(e) Seller agrees to indemnify Buyer, the Company and any Company Subsidiary from any liability, cost or expense relating to (i) those post- retirement medical and life insurance benefits referred to in Section 3(376.1(v)(A) hereof and (ii) those accrued deferred board of ERISAdirectors fees referred to in Section 6.1(v)(B) hereof.
(f) Buyer shall take all actions necessary and appropriate to amend the tax-qualified defined contribution plan maintained by Buyer (the "Buyer Savings Plan") to (i) allow for the establishment of accounts for those Transferred Employees who elected in the manner and under the conditions prescribed by the Savings Plan to have their accounts transferred to the Buyer Savings Plan, including such notes as are held within any Transferred Employee's account in the Savings Plan that were executed by such Transferred Employee, (ii) permitting each Transferred Employee to elect to have such transferred funds invested under one or more investment options, one or more of which is not the Buyer's or an affiliate's security or securities, and (iii) recognizing for all purposes under the Buyer Savings Plan all service which was recognized under the Savings Plan as if it were service rendered to Buyer. Each Benefit Seller shall direct the trustee of the Savings Plan to transfer to the trustee of the Buyer Savings Plan the account balances in cash under the Savings Plan as of the date of transfer in respect of current participants in the Savings Plan who are Transferred Employees and who have elected such account transfer. Upon such transfer Buyer and the Buyer Savings Plan shall assume the liabilities for the account balances under the Savings Plan in respect of Transferred Employees who elected such account transfers and each of Seller and the Savings Plan shall be relieved of all liabilities for such transferred account balances; provided, however, that Seller and the Savings Plan shall retain the liabilities in respect of Transferred Employees for accrued benefits related to the portion of the Savings Plan which relate to the accounts of Transferred Employees who have not elected to have their accounts in the Savings Plan transferred to Buyer Savings Plan. Upon the transfer of assets in accordance with this Section, Buyer agrees to indemnify and hold harmless Seller from and against any and all costs, expenses, and liabilities arising out of or related to the Buyer Savings Plan; provided, however, that Buyer shall not indemnify or hold harmless Seller with respect to those costs, expenses and liabilities which relate to the portion of the Savings Plan which relates to the accounts of Transferred Employees who have not elected to have their accounts in the Savings Plan transferred to the Buyer Savings Plan. Buyer and Seller shall cooperate in the filing of documents required by the transfer of assets and liabilities described herein and, notwithstanding anything contained herein to the contrary, no such transfer shall take place until the later of (x) the 31st day following the filing of all required forms in connection therewith and (y) receipt by Seller of a written statement from Buyer that the Buyer Savings Plan is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) 401 of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Commercial Federal Corp), Stock Purchase Agreement (Commercial Federal Corp)
Employees; Employee Benefits. (a) Abraxas has There are no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement which the Company or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officera party. Except as would not be reasonably expected, key employee individually or group of employees intends in the aggregate, to terminate hishave a Material Adverse Effect, her or their employment with the Company and each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate are in compliance with all applicable Laws respecting employment and employment practices, terms and conditions of employment and wages and hours (including, without limitation, the employment Employee Retirement Income Security Act of any officer1974, key employee or group of employeesas amended (“ERISA”)).
(b) Neither Abraxas nor any Each Employee Benefit Plan has been administered in accordance with its terms in all material respects, and the Company and each of its Subsidiaries is delinquent and their respective ERISA Affiliates has in payments all material respects met its obligations (if any) with respect to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to each Employee Benefit Plan and has made all required contributions (if any) thereto. The Company and the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas Subsidiaries and its Subsidiaries has complied all Employee Benefit Plans are in compliance in all material respects with the currently applicable provisions (iif any) all of ERISA, the Code and other applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, Laws and the payment and withholding regulations thereunder. At no time has the Company or any of taxes and other sums as required by law and (ii) all applicable laws relating its Subsidiaries or, to the Benefit Plans. Each Knowledge of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wagesCompany, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only their respective ERISA Affiliates been obligated to contribute to any “employee pension benefit multiemployer plan” (within the meaning of as defined in Section 3(24001(a)(3) of ERISA) sponsored by each that is subject to Title IV of Abraxas and its Subsidiaries is Abraxas’ 401(k) planERISA.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISAexecution of, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance completion of the transactions contemplated inby, this Agreement will not or any of the other Transaction Documents (either whether alone or upon the occurrence of in connection with any additional or subsequent events) (i) constitute an event under any Benefit Planother event(s)), trust or loan that will or may could result in any payment (whether of A) severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, an increase in benefits or obligation to fund benefits with respect severance pay upon termination after Closing to any current or former employeeemployee of the Company or its Subsidiaries, officer(B) any payment, director compensation or independent contractor benefit becoming due, or increase in the amount of each any payment, compensation or benefit due, to any current or former employee of Abraxas and the Company or its Subsidiaries Subsidiaries, (C) acceleration of the time of payment or (ii) vesting or result in funding of compensation or benefits to any current or former employee of the triggering Company or imposition of its Subsidiaries, (D) any restrictions new material obligation under any Employee Benefit Plan, (E) any limitation or limitations restriction on the right of each of Abraxas and its Subsidiaries Company to amend merge, amend, or terminate any Employee Benefit Plan Plan, or (F) any payments which would not be deductible under Section 280G of the Code or result in any adverse consequence for any such action)subject to Tax under Section 4999 of the Code. No payment Plan provides for reimbursement or benefit that will gross-up of any excise tax under Section 409A or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) 4999 of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Samples: Investment Agreement (Management Network Group Inc)
Employees; Employee Benefits. (a1) Abraxas has no collective bargaining agreements with If any Retained Employee (as defined in Section 5.8(1)) becomes or continues to be a participant in any employee benefit plan, practice or policy of the Buyer or any of its employeesAffiliates, such Retained Employee shall be given credit under such plan for all service prior to the Closing Date with the Seller or any predecessor employer (to the extent such credit was given by the Seller or any predecessor employer), and all service with the Buyer following the Closing Date but prior to the time such employee becomes such a participant, for purposes of determining eligibility and vesting and for all other purposes for which such service is either taken into account or recognized, provided, however, such service need not be credited to the extent it would result in a duplication of benefits, including benefit accrual under defined benefit plans. There is no labor union organizing activity pending orSuch service also shall apply for purposes of satisfying any waiting periods, to Abraxas’ knowledgeevidence of insurability requirements, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation or the application of any term preexisting condition limitations. Employees shall be given credit for amounts paid under a corresponding benefit plan during the same period for purposes of any employment contractapplying deductibles, proprietary information agreement or any other agreement relating to copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the right of any such individual to be employed by, or to contract with, each of Abraxas terms and its Subsidiaries because conditions of the nature of comparable Buyer employee benefit plan. The Buyer agrees to offer employment at the business Closing to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.
(b) Neither Abraxas nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state hourly employees and federal equal employment opportunity laws active salaried employees at the Xxxxxx and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law Xxxx facilities and (ii) those employees identified as "Chargeurs" on Schedule 5.8 with respect to the Bellwood facility. All such employees are hereafter referred to as the "Retained Employees."
(2) If any Retained Employee is discharged by the Buyer as of or after the Closing, then the Buyer shall be responsible for any and all severance costs for such Retained Employee. The Buyer shall be responsible for all notices or payments due to any Retained Employees, and all notices, payments, fines or assessments due to any governmental or regulatory body, pursuant to any applicable laws relating Law, common law, statute, rule or regulation with respect to the employment, discharge or layoff of employees by the Buyer after the Closing, including the WARN Act and any rules or regulations as have been issued in connection with the foregoing.
(3) From and after the Closing, the Buyer shall be responsible for, and shall indemnify and hold harmless the Seller and its Affiliates and their officers, directors, employees, Affiliates and agents and the fiduciaries (including plan administrators) of the Benefit Plans. Each , from and against any and all claims, losses, damages, costs and expenses (including attorneys' fees and expenses) and other liabilities and obligations relating to or arising out of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” all salaries, wages, commissions, employee incentive or an “affiliated service group” within the meaning of Sections 414(b)other compensation, (c) severance, holiday, vacation, health, dental or (m) retirement benefits unpaid as of the Code, (ii) required Closing and post-Closing bonuses due to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing SectionsRetained Employee, in each case with to the extent accrued on the Closing Balance Sheet, and (ii) any other entity (an “ERISA Affiliate”).
(d) The execution and delivery claims of, and performance or damages or penalties sought by, any Retained Employee, or any governmental or regulatory body on behalf of the transactions contemplated inor concerning any Retained Employee, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current act or former employeefailure to act by the Buyer to the extent arising after the Closing from the employment, officerdischarge, director layoff or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition termination of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeRetained Employee.
(e4) There is no pending litigationUpon the terms and conditions hereinafter provided, auditSeller shall transfer, investigation or other proceeding relating cause the trustee of the Ivex Packaging Corporation Retirement Plan (the "Ivex 401(k) Plan") to any Benefit transfer, the account balances of the Retained Employees participating in the Ivex 401(k) Plan to a tax-qualified 401(k) plan and related trust to be established by the Buyer (the "Buyer 401(k) Plan"). The Buyer shall establish or cause to be established the Buyer 401(k) Plan and provide Seller with a copy of a favorable determination letter from the IRS with respect to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.Buyer 401(k)
Appears in 1 contract
Samples: Asset Purchase Agreement (Ivex Packaging Corp /De/)
Employees; Employee Benefits. (a) Abraxas has Except for the five (5) employees identified in a letter to be delivered by the Buyer to the Seller on the Closing Date (the "Side Letter"), the Buyer agrees that individuals who are employed by the Company and the Subsidiaries as of the Closing Date shall remain employees of the Company and the Subsidiaries following the Closing Date (each such employee, "Affected Employee"); provided, however, that except as otherwise provided under applicable Law, or under the terms of any applicable employee benefit plan, employment agreement or Collective Bargaining Agreement, the foregoing shall in no collective bargaining way limit or restrict the rights of the Buyer, to terminate the employment of any Affected Employee, or to amend or terminate, or to cause the amendment or termination of, the terms and conditions of employment of any Affected Employee at any time after the Closing Date.
(b) The Buyer will, or will cause the Company and the Subsidiaries to, give Affected Employees full credit for purposes of eligibility, vesting and determination of the level of benefits under any employee benefit plans or arrangements maintained by the Buyer, the Company, a Subsidiary or any Buyer Subsidiary (as hereinafter defined) for such Affected Employees' service with the Company or a Subsidiary to the same extent recognized by the Company or Subsidiary immediately prior to the Closing Date.
(c) The Buyer will, or will cause the Company to, (i) waive all limitations as to preexisting conditions exclusions and waiting periods with respect to participation and coverage requirements applicable to the Affected Employees under any welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for the Affected Employees immediately prior to the Closing Date, and (ii) provide each Affected Employee with credit for any co-payments and deductibles paid prior to the Closing Date in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans that such employees are eligible to participate in after the Closing Date.
(d) For a period of twelve (12) months immediately following the Closing Date, the coverage and benefits provided to Affected Employees pursuant to employee benefit plans or arrangements maintained by the Buyer, any Buyer Subsidiary, the Company or any Subsidiary shall be, in the aggregate, substantially similar to those provided to such employees immediately prior to the Closing Date.
(e) Notwithstanding any of the foregoing, (i) the Seller will assume and timely pay, and will indemnify the Buyer, its Affiliates and the Buyer Subsidiaries and hold them harmless from and against, 50% of the liability for severance pay and any other severance payment, severance cost or severance benefit that is provided by the Company for the purpose of satisfying its obligations under the five change of control employment agreements with identified in the Side Letter relating to the five employees identified in the Side Letter and (ii) the Buyer will assume and timely pay, and will indemnify the Seller or any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee Affiliates or Subsidiaries and hold them harmless from and against any liability for (A) 50% of each of Abraxas the liability for severance pay and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement severance payment, severance cost or severance benefit that is provided by the Company for the purpose of satisfying its obligations under the five change of control employment agreements identified in the Side Letter relating to the right of any such individual to be employed by, or to contract with, each of Abraxas five employees identified in the Side Letter and its Subsidiaries because (B) 100% of the nature liability for any severance payment, severance cost or severance benefit that is provided by the Company for the purpose of satisfying its obligations under any arrangements, plans or agreements listed on Schedule 6.1(e)(ii) of the business Disclosure Schedule.
(f) Prior to be conducted by each the Closing Date, the Seller will cause the Company (or any of Abraxas and its Subsidiaries; and ) to Abraxas’ knowledge amend any defined benefit pension plan maintained by the continued employment by each of Abraxas and its Subsidiaries Company (or any of its present employeesSubsidiaries), and the performance accompanying trust documents for all such plans, so as to transfer the sponsorship of, and the assets and liabilities of, each such plan to the Seller, effective as of each immediately prior to the Closing Date, so that, as of Abraxas and its Subsidiaries’ contracts with its independent contractorsthe Closing Date, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas neither the Company nor any of its Subsidiaries is aware that the sponsor of any officerdefined benefit pension plan or has any liabilities or obligation to contribute or participate with respect to any such plans. For a period of five years following the Closing Date, key the Seller shall not, and shall cause any of its successors not to (i) terminate any such plan in a "distress termination" (within the meaning of Title IV of ERISA) or (ii) cause any such plan to be terminated, or made subject to proceedings, by the PBGC pursuant to Title IV of ERISA.
(g) Prior to the Closing Date, the Seller will cause the Company (or any of its Subsidiaries) to transfer to the Seller, effective as of immediately prior to such Closing Date, in connection with any former employee of the Company or group any of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each any and all liability for providing (i) any medical benefits to any employee of Abraxas and its Subsidiaries have a present intention the Company who retired or otherwise terminated employment prior to terminate the employment Closing Date (or to the spouse or dependents of any officersuch employee), key employee or group (ii) workers' compensation benefits or any other benefits payable on account of employees.
(b) Neither Abraxas an occupational disease or injury, so that neither the Company nor any of its Subsidiaries is delinquent has any such liability in payments connection with such former employees (or their spouses or dependents) as of the Closing Date.
(h) The Seller shall assume as of immediately prior to any of its employees, consultantsthe Closing Date, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it shall cause the Parent to assume as of immediately prior to the date hereof or amounts required Closing Date, liability of the Company with respect to be reimbursed 5/12 of the annual amount (if any) payable pursuant to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law 1997 Annual Incentive Plan and (ii) the 1997 Industrial and Construction Group Executive Management Incentive Compensation Plan. The parties acknowledge that all applicable laws relating obligations to pay money pursuant to the Benefit Plans. Each November 1996 Company-Parent Memorandum of Abraxas and its Subsidiaries has withheld and paid to Understanding Regarding Special Bonus are the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees responsibility solely of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planParent.
(ci) None Prior to the Closing Date, the Seller shall cause the Company to transfer to the Seller, effective as of immediately prior to the Closing Date, any liability, responsibility or obligation of the Benefit Plans is a “multiemployer plan” as Company (to the extent any such term is defined in Section 3(37liability, responsibility or obligation arises from any promise, announcement or other agreement or undertaking by the Company prior to the Closing Date) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been provide (i) members to any former salaried employee of a “controlled group the Company, regardless of corporations,” under “common control” whether such employee's termination of employment with the Company occurs before, on or an “affiliated service group” within after the meaning of Sections 414(b)Closing Date, (cor any spouse or dependent of such former employee) periodic cash payments commencing at age 65 for the purpose of providing such to former salaried employee (or (mspouse or dependent) the cost of the Coderetiree medical benefits, and (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund supplemental retirement benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeMr. Hartman.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has All employees of NBM and Bank of Montpelier who are actively employed at the Effective Time and who are offered employment by State Bank or another Subsidiary of Rurban (“Continuing Employees”) at the Effective Time and who are not currently covered by a written employment or severance agreement with NBM or Bank of Montpelier, shall be employed as at-will employees of NBM or such other Subsidiary of Rurban. Continuing Employees will continue to participate in the NBM Compensation and Benefit Plans, including health benefit plans unless and until Rurban, in its sole discretion, shall determine that all or some of the NBM Compensation and Benefit Plans shall be terminated or merged into certain employee benefit plans of Rurban or a Rurban Subsidiary. Following the termination or merger of all or some of the NBM Compensation and Benefit Plans, Rurban will, or will cause its Subsidiaries to, provide each Continuing Employee with employee benefits to replace those programs that have been terminated or merged (other than equity or equity-based plans and programs) that are no collective bargaining agreements less than the benefits provided to similarly situated employees of Rurban and its Subsidiaries. At such time as the Continuing Employees shall participate in any employee benefit plans of Rurban pursuant to the foregoing, each such Continuing Employee shall be credited with any years of its employees. There is no labor union organizing activity pending orservice with NBM or Bank of Montpelier and, to Abraxas’ knowledgethe extent credit would have been given by NBM or Bank of Montpelier for years of service with a predecessor (including any organization acquired by NBM or Bank of Montpelier), threatened years of service with a predecessor of NBM or Bank of Montpelier, for purposes of eligibility and vesting in the employee benefit plans of Rurban, including for purposes of seniority under vacation and sick pay plans and programs. Continuing Employees, however, will not be entitled to prior service credit with respect to Abraxas. To Abraxas’ knowledgethe accrual of benefits or allocation of employer contributions under Rurban’s 401(k) plan, no employee of each of Abraxas and its SubsidiariesESOP, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating plan that provides for the accrual of benefits. Subject to any non-waivable limitations under its group health plans, Rurban shall cause any and all pre-existing condition limitations (to the right extent such limitation did not apply to a pre-existing condition under NBM’s or Bank of any such individual Montpelier’s equivalent plan) and eligibility waiting periods under group health plans with respect to Continuing Employees and their eligible dependents to be employed by, or to contract with, each of Abraxas and its Subsidiaries because waived. For the remainder of the nature year ending December 31, 2008, Rurban will provide to each Continuing Employee, with pay, the accrued vacation and sick days listed in Section 6.02(a) of the business NBM Disclosure Schedule to be conducted the extent not used by each of Abraxas and its Subsidiaries; and the Continuing Employee prior to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesClosing.
(b) Neither Abraxas nor any Any employee of its Subsidiaries NBM or Bank of Montpelier immediately before the Effective Time who is delinquent in payments to any not currently covered by a written employment or severance agreement with NBM or Bank of its employees, consultants, Montpelier and who is not offered employment by State Bank or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to another Subsidiary of Rurban at the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with Effective Time shall receive: (i) all applicable state and federal a severance payment equal employment opportunity laws and with other laws related to employment, including those related the product of one (1) week of such employee’s then current salary multiplied by the number of total years of service as an employee of NBM or Bank of Montpelier (up to wages, hours, worker classification, collective bargaining, and the payment and withholding a maximum of taxes and other sums as required by law 20 weeks’ salary); and (ii) all applicable laws relating to payment for vacation and sick time that is unused and accrued consistent with the Benefit Plansterms of NBM’s or Bank of Montpelier’s vacation and sick time policies in effect on the date of this Agreement. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to Additionally, any such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and employee who is not liable for any arrears retained after the Effective Time shall be entitled to elect so-called “COBRA” in accordance with, and subject to, the provisions of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Code Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan4980B(f).
(c) None As of the Benefit Plans is date of this Agreement, Ax Xxxxx shall enter into a “multiemployer plan” as Change of Control Agreement and a SERP Agreement with Rurban and/or State Bank, and each of such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of agreements shall become effective at the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within Effective Time if the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)Closing occurs.
(d) The execution and delivery of, and performance of covenants in this Section 6.02 shall survive the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeMerger.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas Schedule 2.12 sets forth the names of all employees of Seller as of the date of this Agreement (the "Seller Employees") and, with respect to each Seller Employee, such Seller Employee's job title and the date of commencement of employment of such Seller Employee. Seller has no collective bargaining agreements accrued on its books and records all obligations for salaries, vacations, benefits and other compensation with respect to its Seller Employees and any of its employees. There is no labor union organizing activity pending orFormer Seller Employees (as defined below), to Abraxas’ knowledgethe extent required by GAAP, threatened including, but not limited to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agents. Seller does not currently offer, and has never offered, retiree health and insurance benefits to Seller Employees and Former Seller Employees, and Seller does not have any liabilities (contingent or otherwise) with respect thereto. Except as set forth in Schedule 2.12, there are no outstanding loans from Seller to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement Seller Employee or any other agreement relating third party. Complete and correct copies of all written agreements with or concerning Seller Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to Buyer, and a list of all such agreements and policies is set forth in Schedule 2.12. None of the Seller Employees has, to the right knowledge of Seller, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with the transactions contemplated by this Agreement. Except as set forth in Schedule 2.12, since its formation, Seller has not, except in the ordinary course of business and consistent with past practice, (i) increased the salary or other compensation payable or to become payable to or for the benefit of any of the Seller Employees, (ii) provided any of the Seller Employees with any increased security or tenure of employment, (iii) increased the amounts payable to any of the Seller Employees upon the termination of any such individual person's employment or (iv) adopted, increased, augmented or improved benefits granted to be employed by, or to contract with, each for the benefit of Abraxas and its Subsidiaries because any of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in Seller Employees under any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesSeller Benefit Plan.
(b) Neither Abraxas nor any Seller has complied at all times and in all material respects with all laws, statutes, rules and regulations applicable with respect to employees in each of its Subsidiaries is delinquent the jurisdictions in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for which it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractorsoperates and/or does business. Each of Abraxas and its Subsidiaries Seller has complied in all material respects with (i) Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family Medical Leave Act, the Fair Labor Standards Act, as amended, the National Labor Relations Act, and all applicable state laws, statutes and federal equal employment opportunity laws regulations governing payment of minimum wages and with overtime rates, labor standards, working conditions, the withholding and payment of Taxes or any other laws related to kind of governmental charge from compensation, terms and conditions of employment, including those related workplace safety, workers' compensation, disability pay, social benefits whether or not imposed by a governmental program, discriminatory practices, including, without limitation, with respect to wagesemployment and discharge, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws or otherwise relating to the Benefit Plans. Each conduct of Abraxas employers with respect to employees or potential employees (collectively, the "Employee Laws"), and its Subsidiaries has withheld and paid there have been no claims made or, to the appropriate governmental entity knowledge of Seller, threatened thereunder against Seller arising out of or is holding for payment not yet due relating to such governmental entity all amounts required to be withheld from employees or alleging any violation of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “Seller has complied in all material respects with the employment eligibility verification form requirements under the Immigration and Naturalization Act, as amended ("INA"), with respect to Seller Employees, Seller has complied with the paperwork provisions and anti-discrimination provisions of the INA and Seller has obtained and maintained the employee pension benefit plan” records and I-9 forms with respect to the Seller Employees in proper order as required by law. Seller is not currently employing any Seller Employees who are not citizens of the United States or who are not authorized to work in the United States. There are no controversies, strikes, work stoppages, picketing, filed grievances, job actions, unfair labor practice charges, investigations, complaints, disputes or other proceedings pending or threatened between Seller and any of the Seller Employees or Former Seller Employees (within as defined below); no labor union or other collective bargaining unit represents or has ever represented any of the meaning Seller Employees in connection with their employment with Seller; Seller has no knowledge of Section 3(2any organizational effort by any labor union or other collective bargaining agent currently under way or threatened with respect to any Seller Employees; no negotiation with or consent of any labor union or other collective bargaining unit representing Seller Employees is required to consummate the transactions contemplated by this Agreement; and Seller has not incurred any liability under the Worker Adjustment Retraining Notification Act ("WARN") of ERISA) sponsored by each of Abraxas or similar state and its Subsidiaries is Abraxas’ 401(k) planlocal laws.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Seller Employees are "leased employees" within the meaning of Section 3(37414(n) of the Code. Schedule 2.12 sets forth a list of each defined benefit and defined contribution plan, stock ownership plan, executive compensation program or arrangement, bonus plan, incentive compensation plan or arrangement, deferred compensation agreement or arrangement, supplemental retirement plan or arrangement, vacation pay, sickness, disability or death benefit plan (whether provided through insurance, on a funded or unfunded basis or otherwise), medical or life insurance plan, providing benefits to any Seller Employee, retiree or Former Seller Employee or any of their dependents, survivors or beneficiaries, employee stock option or stock purchase plan, severance pay, termination or salary continuation plan, Section 125 cafeteria plan, fringe benefit plan, and each other employee benefit plan, program or arrangement, including, without limitation, each "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA. "), which is maintained by Seller for the benefit of or relating to any of the Seller Employees or to any former employees of Seller (the "Former Seller Employees") or their dependents, survivors or beneficiaries, whether or not legally binding, and for which Seller could reasonably have any liabilities, all of which are herein referred to as the "Seller Benefit Plans." Except as set forth on Schedule 2.12(c), none of Buyer, Merger Sub, Surviving Corporation or Seller will incur any liability under any severance agreement, deferred compensation agreement, employment agreement, similar agreement or Seller Benefit Plan as a result of the consummation of the transactions contemplated by this Agreement.
(d) Each Seller Benefit Plan which is intended to be qualified under an "employee pension benefit plan" (as defined in Section 3(2) of ERISA) meets the requirements of Section 401(a) of the Code Code; the trust, if any, forming part of such plan is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” exempt from U.S. Federal income Tax under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (mSection 501(a) of the Code; a favorable determination letter has been issued by the IRS after January 1, 1994 with respect to each plan and trust and each amendment thereto; and since the date of such determination letter there are no circumstances which are likely to adversely affect the qualification of such plan. No Seller Benefit Plan is a "voluntary employees beneficiary association" (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14501(c)(9) of the Code) and there have been no other "welfare benefit funds" relating to Seller Employees or Former Seller Employees within the meaning of Section 419 of the Code. No event or condition exists with respect to any Seller Benefit Plan that could subject Seller to any Tax under Section 4980B of the Code or, for plan years beginning before January 1, 1989, Section 162(k) of the Code. With respect to each Seller Benefit Plan, Seller has heretofore delivered to Buyer complete and correct copies of the following documents, where applicable: (i) the most recent annual report (Form 5500 series), together with schedules, as required, filed with the IRS, and any financial statements and opinions required by Section 103(a)(3) of ERISA, (ii) the most recent determination letter issued by the IRS, (iii) the most recent summary plan description and all modifications, (iv) the text of the Seller Benefit Plan and of any trust, insurance or annuity contracts maintained in connection therewith, (v) the most recent actuarial report, if any, relating to the Seller Benefit Plan and (vi) the most recent actuarial valuation, study or estimate of any retiree medical and life insurance benefits plan or supplemental retirement benefit plan.
(e) Except as set forth on Schedule 2.12, neither Seller nor any corporation or other trade or business under common control with Seller (as determined pursuant to Section 414(b) or (c) of the Code) (a "Common Control Entity") maintains or contributes to or in any way directly or indirectly has any liability (whether contingent or otherwise) with respect to, any "multiemployer plan," within the meaning of Section 3(37) or 4001(a)(3) of ERISA, or any regulations promulgated other employee pension benefit plan subject to Title IV of ERISA or proposed Section 412 of the Code; no Seller Benefit Plan or of any Common Control Entity is subject to Title IV of ERISA. No contingent or other liability with respect to which Seller has or could have any liability exists under Title IV of ERISA to the Pension Benefit Guaranty Corporation (the "PBGC") or to any Seller Benefit Plan; and no assets of the Seller are subject to a lien under Sections 4064 or 4068 of ERISA. Except as set forth on in Schedule 2.12, all contributions required to be made to or with respect to each Seller Benefit Plan with respect to the service of Seller Employees or Former Seller Employees prior to the date hereof have been made or have been accrued for in the books and records of Seller for all periods through the date hereof. Seller does not have any obligation to provide post-retirement medical or other benefits to Seller Employees or Former Seller Employees or their survivors, dependents and beneficiaries, except as may be required by Section 4980B of the Code or Part 6 of Title I of ERISA or applicable state medical benefits continuation law and Seller may terminate any such post-retirement medical or other benefits upon thirty (30) days' notice or less without any liability therefor.
(f) None of the Seller Benefit Plans has been subject to a "reportable event," within the meaning of Section 4043 of ERISA (whether or not waived), within the 24-month period ended on the date hereof; there have been no "prohibited transactions" within the meaning of Section 4975 of the Code or Part 4 of Subtitle B of Title I of ERISA in connection with any of the foregoing SectionsSeller Benefit Plans that, assuming the taxable period of such transaction expired as of the date hereof, could subject Seller to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which could have a Material Adverse Effect; none of the Seller Benefit Plans which are subject to Section 412 of the Code has incurred any "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the Code and Seller is not subject to a lien under Section 412(n) of the Code; each Seller Benefit Plan has, in each case all material respects, been administered to date in accordance with any other entity (an “ERISA Affiliate”).
(d) The execution the applicable provisions of ERISA, the Code and delivery ofapplicable law and with the terms and provisions of all documents, contracts or agreements pursuant to which such Seller Benefit Plan is maintained; all reports and performance information required to be filed with the Department of Labor, the transactions contemplated in, this Agreement will not (either alone IRS or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits PBGC with respect to any current Seller Benefit Plan have been timely filed or former employeedelivered; there is no arbitration, officerclaim or suit pending or, director or independent contractor to the knowledge of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Seller, threatened, involving a Seller Benefit Plan (other than routine claims for benefits), and, to the knowledge of Seller, there is no basis for such a claim; none of the Seller Benefit Plans nor any fiduciary thereof has been, to the knowledge of Seller, the direct or indirect subject of an order or investigation or examination by a governmental or quasi-governmental agency and there are no matters pending before the IRS, the Department of Labor, or any other governmental agency with respect to a Seller Benefit Plan; and there has not been and will be no "parachute payment" (as defined in Section 280G(b)(2) of the Code) to any of the Seller Employees prior to the Closing or as a result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with of the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeAgreement.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Samples: Merger Agreement (Vizacom Inc)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any Section 5.6(a) of its employeesthe Disclosure Schedule sets forth a complete and correct list identifying each Business Employee as of the date hereof. There is no labor union organizing activity pending or, Seller agrees to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee update Section 5.6(a) of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating the Disclosure Schedule ten (10) days prior to the right of any such individual Closing Date to be employed by, or to contract with, each of Abraxas include new hires and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violationterminations. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate Seller shall transfer the employment of any officer, key employee each Transferred Employee to Seller or group of employeesa Group Affiliate prior to the Closing Date.
(b) Neither Abraxas nor any From the Closing Date until the first anniversary of its Subsidiaries is delinquent in payments the Closing Date, Purchaser shall cause each Company and Subsidiary to any of its employees, consultants, provide such Company’s or independent contractors for any wages, Subsidiary’s Business Employees with salaries, commissionsincentive opportunities and benefit plans, bonuses, or other direct compensation for any service performed for it to programs and arrangements no less favorable in the aggregate than either those currently provided as of the date hereof by Seller, its Group Affiliates, the Companies and the Subsidiaries or amounts required those provided as of the date hereof by Purchaser to be reimbursed to such its similarly situated employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums except as otherwise required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planLaw.
(c) None If any Business Employee becomes a participant in any employee benefit plan, practice or policy of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor Purchaser or any of its Subsidiaries is Affiliates, excluding any non-qualified or non-statutory retirement or deferred compensation plan, such Business Employee shall be given credit under such plan for all service prior to the Closing Date with Seller and has not ever been its ERISA Affiliates or any predecessor employer (i) members of to the extent such credit was given by Seller, a “controlled group of corporations,” under “common control” Company, a Subsidiary or an “affiliated service group” within the meaning of Sections 414(bany predecessor employer), (c) and all service with the Companies, any Subsidiary or (m) Purchaser following the Closing Date but prior to the time such employee becomes such a participant, for purposes of determining eligibility and vesting but not for purposes of benefit accruals, unless required by Law. Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any preexisting condition limitations. Employees shall be given credit for amounts paid under a corresponding benefit plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)comparable Purchaser employee benefit plan.
(d) The execution If any Business Employee is discharged by Purchaser, any Company or Subsidiary or their Affiliates after the Closing, Purchaser shall be responsible for any and delivery ofall severance costs for such Business Employee, including payments owing under those agreements, plans or arrangements listed in the Disclosure Schedule. Purchaser shall be responsible and assume all liability for all notices or payments due to any Business Employees, and performance of the transactions contemplated inall notices, this Agreement will not (either alone payments, fines or upon the occurrence of assessments due to any additional Governmental Entity, pursuant to any applicable foreign, federal, state or subsequent events) (i) constitute an event under any Benefit Planlocal Law, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to the employment, discharge or layoff of Business Employees by any current Company or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in Subsidiary after the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeClosing.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or (i) Except with respect to the employmentPlans identified on Section 5.6(e)(i) of the Disclosure Schedule, termination prior to the Closing Seller shall cause sponsorship of employmenteach Plan which covers employees in the United States (each a “U.S. Plan”), compensation or employee benefits including, if applicable, the trust holding the assets of any current or former employee, director or independent contractor norsuch Plan, to be transferred to an ERISA Affiliate other than a Company or Subsidiary and shall cause the knowledge Business Employees to cease active participation in such U.S. Plans effective as of Abraxasthe Closing. For purposes of Section 8.2, is any such litigation, audit, investigation or the U.S. Plans (other proceeding threatenedthan the Plan identified on Section 5.6(e)(i) of the Disclosure Schedule) shall be deemed to be part of the Retained Business.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas The Issuer has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to Abraxas’ the Issuer’s knowledge, threatened with respect to Abraxasthe Issuer. To Abraxas’ the Issuer’s knowledge, no employee of each of Abraxas the Issuer and its Subsidiaries, nor any consultant with whom each of Abraxas the Issuer and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas the Issuer and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas the Issuer and its Subsidiaries; and to Abraxas’ the Issuer’s knowledge the continued employment by each of Abraxas the Issuer and its Subsidiaries of its present employees, and the performance of each of Abraxas the Issuer and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas the Issuer nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas the Issuer nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas the Issuer and its Subsidiaries, nor does each of Abraxas the Issuer and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.
(b) Neither Abraxas the Issuer nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas the Issuer and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas the Issuer and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas the Issuer and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas the Issuer and its Subsidiaries is Abraxas’ the Issuer’s 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas the Issuer nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i1) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas the Issuer and its Subsidiaries or (ii2) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas the Issuer and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxasthe Issuer, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Samples: Securities Purchase Agreement (Abraxas Petroleum Corp)
Employees; Employee Benefits. (a) Abraxas All employees of the Company or its Affiliates engaged in the Business who are actively employed immediately prior to the Closing Date, including without limitation, those on short-term disability or other leave of absence, whether for medical reasons or otherwise, shall continue as employees of the Company or its Affiliates on the Closing Date. Such employees shall be referred to herein as the "Business Employees." Notwithstanding the foregoing, the Business Employees shall not include any person who is receiving benefits under a long-term disability plan provided to employees of the Company or its Affiliates including, without limitation, the VEBA with respect to such Business Employees, or who has no applied for benefits under such plan. If any such employees are able to return to work any time after the Closing Date, they shall become Business Employees, and shall be the responsibility of the Buyer. Buyer shall maintain the collective bargaining agreements with between the Company or its Affiliates and the bargaining units representing Business Employees at the Barbourville, Kentucky and Cleveland, Ohio locations of Seller, and at any foreign locations of its employeesthe Company where collective bargaining agreements are in force. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened Buyer agrees that with respect to Abraxas. To Abraxas’ knowledgeany Business Employee who is terminated within one (1) year after the Closing Date, no employee whether such termination is actual or constructive, it shall indemnify, and hold harmless and defend Seller, its affiliates and their respective officers, directors, employees, agents, successors and assigns, from and against any claim, course of each of Abraxas and its Subsidiariesaction, nor any consultant with whom each of Abraxas and its Subsidiaries has contracteddemand, is in violation loss, liability, expense, or cost of any term kind or amount whatsoever (including court costs and attorneys' fees) incurred or suffered by Seller, or one or more of said parties, arising as a direct or indirect result of such termination, including without limitation any liability for severance costs, whether under a severance plan of Seller or the Company or its Affiliates or as a result of a failure to comply with the provisions of any employment contract, proprietary information agreement statute or governmental requirement regarding the provision of notice of termination to any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.
(b) Neither Abraxas nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for as a result of any wages, salaries, commissions, bonusescharge of employment discrimination, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of laws or other requirements governing the employment relationship. Notwithstanding the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended , however, Buyer's indemnification obligation shall not apply to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed liabilities arising under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”Plans which were not disclosed to Buyer under SECTION 4.1(n).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because Section 2.16(a) of the nature Seller Disclosure Letter sets forth a complete and correct list as of the business date of this Agreement of all employees currently employed at a Branch Office, including their job titles and current base salary, employment location, most recent date of hire, adjusted date of hire, status as full-time or part-time, current status as either active or on leave and, if on leave and if known, the date on which the employee is expected to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesresume active service.
(b) Neither Abraxas nor any Section 2.16(b) of its Subsidiaries is delinquent in payments the Seller Disclosure Letter includes a complete list of each material Employee Benefit Plan (each a “Material Employee Benefit Plan”). Seller has made available to any Purchaser a correct and complete copy or written summary of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries each Material Employee Benefit Plan.
(c) Seller has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning health care continuation requirements of Section 3(2) 601, et. seq., of ERISA) sponsored by each of Abraxas ERISA with respect to Employees and its Subsidiaries is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is their spouses, former spouses and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)dependents.
(d) The execution and delivery of, and performance Section 2.16(d) of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor Seller Disclosure Letter sets forth a list of each of Abraxas and its Subsidiaries contract that Seller has entered into with any Employee, including those containing noncompetition, non-solicitation, confidentiality or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Codeother restrictive covenants.
(e) Except as set forth in Section 2.16(e) of the Seller Disclosure Letter, as of the date hereof, none of the Employees has notified Seller of his or her intention to terminate employment with Seller. There is no proceeding pending litigationor, audit, investigation or other proceeding relating to any Benefit Plan or to the employmentknowledge of Seller, termination threatened under the Fair Labor Standards Act of employment1938, compensation as amended (or employee benefits of under any current state or former employeelocal wage and hour laws and regulations) against Seller which affects the Branch Business, director or independent contractor nor, to the knowledge of AbraxasSeller, is there any such litigationbasis for any of the same. There are no proceedings or disputes pending or, auditto the knowledge of Seller, investigation threatened by any Employee in relation to his or other proceeding threatenedher terms of employment or in relation to any discrimination issue or the termination of his or her employment. Seller is not a party to or bound by any collective bargaining agreement with respect to the Employees. There is no actual, or to the knowledge of Seller, threatened labor strike, organized work stoppage or lockout, or any dispute or controversy with a union or with respect to unionization or collective bargaining involving any of the Employees.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending orSubject to applicable law, on and after the Closing, to Abraxas’ knowledgethe extent practicable, threatened Parent shall provide each Transferred Employee credit with respect to Abraxaseach employee benefit plan of Parent in which such Transferred Employee participates, for service prior to the Closing Date with the Company, for purposes of determining eligibility and vesting and for any other purpose for which such service is currently recognized under a comparable Company employee benefit plan for such purpose; provided, however, such service need not be credited to the extent it would result in a duplication of benefits, including benefit accrual under defined benefit plans or determination of level of benefits. To Abraxas’ knowledgeSuch service also shall apply, no employee to the extent practicable, for purposes of each satisfying any waiting periods, evidence of Abraxas and its Subsidiariesinsurability requirements, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation or the application of any term preexisting condition limitations applicable under any employee benefit plans of any employment contract, proprietary information agreement or any other agreement relating to the right of any Parent in which such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesTransferred Employee participates.
(b) Neither Abraxas nor If any of its Subsidiaries Transferred Employee is delinquent discharged by Parent after (but not prior to) the Closing, then Parent shall be responsible for any and all severance costs for such Transferred Employee, to the extent such payments are owing under those agreements, plans or arrangements listed in the Disclosure Schedules, all liability for all notices or payments due to any of its employeesTransferred Employee after the Closing pursuant to any agreements, consultantsthe WARN Act or Applicable Law, or independent contractors and under any arrangements provided by Parent to such Transferred Employee. The Company shall be responsible and assumes all liabilities for any wagesand all severance costs, salariesnotices and payments including, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related but not limited to wages, hoursvacation pay and reimbursement earned through the Closing Date due to any employees of the Company terminated, worker classificationor given notice of termination, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating prior to the Benefit PlansClosing, pursuant to any agreements, plans or arrangements, the WARN Act or other Applicable Law. Each All payments and obligations of Abraxas the Company due and its Subsidiaries has withheld and paid owing prior to the appropriate governmental entity Closing Date shall be paid or is holding for payment not yet due fulfilled by the Company prior to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planClosing Date.
(c) None of the Benefit Plans is a “multiemployer plan” as Company shall provide to Parent such term is defined in information necessary or appropriate for Parent to provide benefits to Transferred Employees pursuant to this Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has 8.4, including, but not ever been (i) members limited to, confirmation of a “controlled group Transferred Employee’s termination of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)employment from Company.
(d) The execution and delivery ofCompany will pay, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or prior to the employmentClosing Date, termination of employment, all applicable premiums for all compensation or and employee benefits of any current or former employee, director or independent contractor nor, to due before the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedClosing Date.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has There are no collective bargaining agreements with to which the Company or any of its employeesthe Subsidiaries is a party. There is no labor union organizing activity pending orExcept as would not be reasonably expected, individually or in the aggregate, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate Company Material Adverse Effect, the Company and each Subsidiary are in compliance with all Requirements of Law respecting employment and employment practices, terms and conditions of any officer, key employee or group of employeesemployment and wages and hours.
(b) Neither Abraxas nor Schedule 3.20 contains a true and complete list of all “pension plans” and “welfare plans” as defined in Section 3(2) and 3(1), respectively, of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), in each case applied without regard to the exceptions from coverage contained in Sections 4(b)(4) or 4(b)(5) thereof, maintained, or contributed to, by the Company or any of its the Subsidiaries is delinquent in payments to or any ERISA Affiliate of its employees, consultants, the Company or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractorsSubsidiary (“Employee Benefit Plans”). Each Employee Benefit Plan has been administered in accordance with its terms in all material respects, and the Company and each of Abraxas the Subsidiaries and their respective ERISA Affiliates has in all material respects met its obligations (if any) with respect to each Employee Benefit Plan and has made all required contributions (if any) thereto. The Company and the Subsidiaries has complied and all Employee Benefit Plans are in compliance in all material respects with the currently applicable provisions (iif any) all of ERISA, the Code and other applicable federal, state and federal equal employment opportunity foreign laws and with other laws related the regulations thereunder. None of the Company, the Subsidiaries or their respective ERISA Affiliates has ever maintained a Employee Benefit Plan subject to employmentSection 412 of the Code, including those related to wages, hours, worker classification, collective bargaining, and Part 3 of Subtitle B of Title I of ERISA or Title IV of ERISA. At no time has the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity Company or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only Subsidiaries or, to the Knowledge of the Company, any of their respective ERISA Affiliates been obligated to contribute to any “employee pension benefit multiemployer plan” (within the meaning of as defined in Section 3(24001(a)(3) of ERISA) sponsored by each of Abraxas and its Subsidiaries that is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) subject to Title IV of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has no collective bargaining Section 4.11(a) of the Company Disclosure Schedule sets forth as of the date hereof a complete and correct list of (i) all material “employee benefit plans” (as defined in Section 3(3) of ERISA) and (ii) all material bonus, stock option, stock purchase, restricted stock, benefit, incentive compensation, profit sharing, savings, retirement, disability, insurance, vacation, incentive, deferred compensation, supplemental retirement, severance, termination pay, salary continuation, employment, consulting, indemnification, layoff, unemployment, change in control, medical, dental, health, welfare and other similar fringe or employee benefit plans, programs, agreements with or arrangements written or otherwise (including any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened employee communication evidencing any express or implied commitment with respect to Abraxas. To Abraxas’ knowledgeany of the foregoing) maintained or contributed to, no employee or under which any of the Company, Seller or their Affiliates could have any direct or indirect Liability, in each case, for the benefit of Abraxas and its Subsidiariesor relating to any Company Employee, director or consultant of the Company or any Company Subsidiary (whether or not material, the “Employee Plans”), excluding expired or fully performed agreements under which neither the Company nor any consultant with whom Company Subsidiary could have any Liability whatsoever. Section 4.11(a) of the Company Disclosure Schedule separately designates each of Abraxas and its Subsidiaries has contracted, Employee Plan that is in violation of any term of any employment contract, proprietary information agreement sponsored or maintained by the Company or any other agreement relating Company Subsidiary (whether or not material, the “Company Employee Plans”). Each Employee Plan that is not a Company Employee Plan is hereinafter referred to as a “Seller Employee Plan.” No Employee Plan is maintained outside the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because jurisdiction of the nature United States or covers any Company Employees or other service providers of the business to be conducted by each Company or any Company Subsidiary who reside or work outside of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesUnited States.
(b) In respect of each Company Employee Plan set forth on Section 4.11(a) of the Company Disclosure Schedule, the Company has made available to Buyer (i) the most recent annual report on Form 5500 filed with the Internal Revenue Service for any Company Employee Plan where such report is required and (ii) a true and complete copy of the plan documents (including all amendments) and trust agreements or other funding arrangements, if any, governing such Employee Plan (other than those referred to in Section 4(b)(4) of ERISA) (or, if the Employee Plan is not written, a written description thereof). Neither Abraxas the Company nor any of its Subsidiaries is delinquent in payments Company Subsidiary has any express or implied commitment to modify, change or terminate any of its employeesEmployee Plan, consultantsother than with respect to a modification, change or independent contractors for any wagestermination required by Law.
(c) All Company Employee Plans have been established, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas operated and its Subsidiaries has complied administered in all material respects in compliance with their terms and applicable Law, including ERISA and the Code. There are no Actions or Proceedings pending or, to the Knowledge of the Company, threatened in writing against any Employee Plan which would reasonably be expected to result, in the aggregate, in any material Liability to the Company or any of the Subsidiaries and, to the Knowledge of the Company, no fact or event exists that would give rise to any such Action or Proceeding.
(d) None of the Employee Plans is (i) all applicable state and federal equal employment opportunity laws and with other laws related subject to employmentTitle IV of ERISA, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (a multiemployer plan within the meaning of Section 3(23(37) or 4001(a)(3) of ERISA (a “Multiemployer Plan”) or (iii) a single employer pension plan within the meaning of Section 4001(a)(15) of ERISA for which the Company or any Company Subsidiary could incur Liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). None of the Company, any Company Subsidiary, nor any of their respective ERISA Affiliates has ever during the six-year period ending on the Closing Date maintained, sponsored, contributed to, or incurred any Liability or obligation with respect to any employee benefit plan subject to Title IV of ERISA or Section 412 of the Code. None of the Company, any Company Subsidiary, nor any of their respective ERISA Affiliates has incurred any Liability under, arising out of or by operation of Title IV of ERISA, other than Liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course of business, including any Liability in connection with (i) sponsored by each the termination or reorganization of Abraxas any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan or Multiple Employer Plan, and its Subsidiaries is Abraxas’ 401(k) planno fact or event exists that would give rise to any such Liability.
(ce) None To the Knowledge of the Benefit Plans is a Company, with respect to any Employee Plan, there has not occurred any non-exempt “multiemployer planprohibited transaction,” as such term is defined in Section 3(37) 4975 of ERISAthe Code or Section 406 of ERISA which could result in a material Liability to the Company or any Company Subsidiary. Each Benefit Employee Plan which is intended to be qualified qualify under Section 401(a) of the Code is so qualifiedhas timely received a favorable determination or opinion letter from the Internal Revenue Service to such effect. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within To the meaning of Sections 414(b), (c) or (m) Knowledge of the CodeCompany, no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that could adversely affect the qualified status of any such Employee Plan.
(iif) All contributions, premiums or payments required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits made with respect to any current Company Employee Plan have been made on or former employeebefore their due dates. No insurance policy or any other Contract affecting any Company Employee Plan requires or permits a retroactive -35- increase in premiums or payments due thereunder. In accordance with applicable law, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Company Employee Plan (other than any Company Employee Plan that is an employment, severance, or similar agreement with a specified individual) can be amended or terminated by the Company at any time, without consent from any other person and without material liability other than for benefits accrued as of the date of such amendment or termination (other than administrative expenses incurred as a result in of such termination) or liabilities that arise under applicable Law.
(g) No Company Employee Plan provides for post-retirement medical or other post-retirement welfare benefits (excluding severance pay and benefits), other than the medical benefits required to be provided under Part 6 of Subtitle B of Title I of ERISA or any adverse consequence for similar law (“COBRA”), and none of the Company nor any Company Subsidiary has any obligation or Liability to provide any such action). No payment benefits except to the extent expressly required by COBRA or benefit that will or may be made any similar local law.
(h) Except as set forth in connection with Section 4.11(h) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event) will be characterized as (i) entitle any Company Employee or current or former director or consultant of the Company or any Company Subsidiary to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any such Company Employee or director or consultant, (iii) directly or indirectly cause the Company or any Company Subsidiary to transfer or set aside any assets to fund any material benefits under any Employee Plan, (iv) increase any benefits otherwise payable by the Company or any Company Subsidiary under any Employee Plan or otherwise give rise to any material Liability pursuant to any Employee Plan, (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Employee Plan on or following the Closing or (vi) result in any forgiveness of indebtedness to any Company Employee or current or former director or consultant of the Company or any Company Subsidiary.
(i) Neither the Company nor any Company Subsidiary has any obligation to provide (whether pursuant to an Employee Plan or otherwise) a “excess parachute payment” within gross-up”, indemnity payment or otherwise to compensate any individual with respect to the meaning additional taxes or interest pursuant to Section 280G of the Code or Section 280G(b)(1) 4999 of the Code.
(ej) There Each Employee Plan that is no pending litigationa “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder. Neither the Company nor any Company Subsidiary has any obligation to gross up, auditindemnify or otherwise reimburse any individual for any excise taxes, investigation interest or other proceeding relating penalties incurred pursuant to any Benefit Plan or to Section 409A of the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedCode.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any of its employees. There Buyer shall offer to employ each person listed on Schedule 5.9
(a) who is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no an employee of either Seller or its affiliates or Systems Chemistry on the Closing Date (the "Affected Employees"), other than Affected Employees who are not actively employed by Seller or its affiliates or Systems Chemistry on the Closing Date in a position substantially similar to that held with Seller or its affiliates or Systems Chemistry as of the Closing Date, with base salaries or wages substantially equivalent to those provided as of such date. Buyer shall provide each Affected Employee who accepts employment with Buyer ("Transferred Employee") with benefits that are comparable in the aggregate to the benefits under the Plans provided to such Transferred Employees immediately prior to the Closing Date. Nothing in this Section 5.9 shall be deemed to require Buyer to retain any Transferred Employee for any period of Abraxas and its Subsidiariestime. Buyer agrees that as to any Affected Employee not offered employment, nor such action shall not be upon the basis of race, sex, age, religion, disability or national origin. Buyer's offer of employment may be conditioned upon an Affected Employee reporting to work within six business days after the Closing Date or providing a written physician's statement acceptable to the Buyer that the individual is fit to perform his or her job. Buyer shall give full credit for all service with Systems Chemistry, Seller, any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement ERISA Affiliate or any other agreement relating affiliate of such entities (together with ERISA Affiliates, "Affiliates"), and any predecessor thereto to the right extent that service with such predecessor entity was recognized under the applicable Plan, to each Transferred Employee for purposes of any such individual eligibility to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employeesparticipate in, and vesting under any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer or its subsidiaries for Transferred Employees on or after the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractorsClosing Date except Buyer's retiree medical plan, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.severance pay
(b) Neither Abraxas nor any of its Subsidiaries is delinquent in Buyer shall be responsible and assume all liability for all salary and benefit continuation and/or severance payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, Transferred Employee that may be payable as a result of any termination of employment, compensation or employee benefits employment with the Buyer after the Closing Date of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedTransferred Employee.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with The Buyer shall be permitted to offer employment to any of its employeesthe employees of any subsidiary of PII (other than the Companies and their Subsidiaries) who are identified in Section 4.9(a) of the Seller Disclosure Letter (the “Operating Employees”), provided that the Buyer shall condition such employment on the resignation of the Operating Employee from his or her employer that is PII or any affiliate of PII so that the Operating Employee’s termination of employment with PII or any affiliate of PII shall not give rise to any benefit under any applicable severance plan. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas The Buyer shall indemnify and hold harmless PII and its Subsidiaries, nor affiliates for severance or similar benefits made to any consultant Operating Employee who accepts employment with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because Buyer effective as of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesClosing Date.
(b) Neither Abraxas nor The Buyer agrees that, for a period beginning on the date of this Agreement and ending on the third anniversary of the Closing Date, it will not, and will cause any of its Subsidiaries is delinquent in payments to any affiliates not to, directly or indirectly solicit the employment of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employees of PII or its affiliates, other than the Operating Employees and the employees of the Companies and their respective Subsidiaries; provided, however, that a general advertisement or general solicitation for potential employees shall not be considered a breach of this Section 4.9(b), and a decision to hire any employee pension benefit plan” (within the meaning of PII or its affiliates who applies in response to such solicitation shall not be considered a breach of this Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plan4.9(b).
(c) None On and after the Closing, until at least the first anniversary of the Benefit Plans is Closing, the Buyer shall provide the employees and former employees of any Company or any of its Subsidiaries and the Operating Employees who accept employment with the Buyer (the employees of any Company or any of its Subsidiaries and the Operating Employees who accept employment with the Buyer are hereinafter collectively referred to as the “Affected Employees”) with compensation and benefits substantially similar in the aggregate than those provided by PII or the applicable affiliate of PII immediately prior to the Closing Date.
(d) If any Affected Employee becomes a participant in (i) any “multiemployer employee benefit plan,” as such term is defined in Section 3(373(3) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required any plan that would be an employee benefit plan if it were subject to be aggregated under Section 414(oERISA or the Code, such as plans outside the jurisdiction of the United States, (iii) any bonus, deferred compensation, excess benefit, or incentive compensation plan, (iv) any supplemental unemployment, sick leave, vacation pay, long-term disability, post-retirement medical or life insurance, and (v) any other plan, program, policy, or arrangement providing benefits to employees (collectively, “Benefit Plans”) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, Buyer or any regulations promulgated of its affiliates (a “Buyer Plan”), such employee shall be given credit under such Buyer Plan for all service prior to the Closing Date with PII or proposed the employer affiliate (to the extent such credit was given by PII or the employer affiliate) and all service prior to the time each employee becomes such a participant, for purposes of eligibility and vesting and for all other purposes for which such service is either taken into account or recognized (other than for purposes of benefit accrual under defined benefit plans); provided, however, such service need not be credited to the extent it would result in a duplication of benefits. The Buyer shall amend or cause to be amended any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance Buyer Plans to the extent necessary to recognize all service of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated Affected Employees as required by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code4.9(d).
(e) There In the event that any person who is no pending litigationan employee of any Company or any of its Subsidiaries immediately prior to the Closing is discharged by the Buyer, auditany Company or such Subsidiary, investigation or is deemed discharged or can bring a claim of discharge, as of or after the Closing Date, then the Buyer shall be responsible for any severance costs for such employee including (i) such severance costs that become payable under applicable Law and (ii) costs as set forth in Section 4.9(e) of the Seller Disclosure Letter. The Buyer shall be responsible and assume all liability for all notices or payments due to any such employees, and all notices, payments, fines or assessments due to any law (including common law), statute or ordinance of any nation or state or any regulation, policy, protocol, proclamation or executive order promulgated by any union representing Affected Employees or any national, federal, regional, state, local or other proceeding relating to any Benefit Plan governmental agency, authority, administrative agency, regulatory body, commission, instrumentality, court, official or arbitral tribunal having governmental or quasi-governmental powers with respect to the employment, discharge or layoff of employees by Buyer or any affiliate as of or after the Closing, including the Worker Adjustment and Retraining Notification Act and any rules or regulations as have been issued in connection with the foregoing.
(f) If an Affected Employee is participating in a Benefit Plan sponsored by PII or any of its subsidiaries that provides health benefits, whether or not subject to U.S. Law, immediately prior to the Closing Date, the Buyer agrees that, upon the Closing, such Affected Employee shall be immediately eligible to participate, without any waiting time, in a Buyer Plan that provides health benefits, and Buyer shall credit such Affected Employee under such Buyer Plan, for the calendar year during which the Closing Date occurs, with the deductibles, coinsurance and maximum out-of-pocket provisions and any other applicable expenses already incurred during the portion of the year preceding the Closing Date under the applicable Benefit Plan sponsored by PII or any of its subsidiaries that provides health benefits. The Buyer shall be responsible and assume all liability for obligations, if any, relating to post-retirement welfare plans covering the Affected Employees or former employees of any Company or any of its Subsidiaries, which obligation is summarized in Section 4.9(f) of the Seller Disclosure Letter.
(g) The Buyer acknowledges that, at the Closing, the participation by each of the Companies and their respective Subsidiaries in all Benefit Plans not sponsored or maintained solely by any of the Companies and such Subsidiaries shall terminate, and the Buyer shall be solely responsible for providing any successor or alternate plans.
(h) The Buyer shall cause the Companies and their respective Subsidiaries to honor any collective bargaining agreements identified on Section 2.5 of the Seller Disclosure Letter.
(i) From and after the Closing Date, the Buyer shall be responsible for, and shall indemnify and hold harmless, the Sellers and their respective officers, directors, employees, affiliates and agents and the fiduciaries (including plan administrators) of the Benefit Plans, from and against, any and all claims, losses, damages, costs and expenses (including attorneys’ fees and expenses) and other liabilities and obligations relating to or arising out of (i) all compensation, salaries, commissions and vacation entitlements accrued but unpaid as of the Closing and post-Closing bonuses due to any Affected Employee, (ii) the liabilities assumed by the Buyer under this Section 4.9 or any failure by the Buyer to comply with the provisions of this Section 4.9, and (iii) any claims of, or damages or penalties sought by, any Affected Employee, any national, federal, regional, state, local or other governmental agency, authority, administrative agency, regulatory body, commission, instrumentality, court, official or arbitral tribunal having governmental or quasi-governmental powers on behalf of or concerning any Affected Employee, or any union representing any Affected Employee, with respect to any act or failure to act by the Buyer to the extent arising from the employment, discharge, layoff or termination of employment, compensation any Affected Employee on or employee benefits of any current or former employee, director or independent contractor nor, to after the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedClosing Date.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas Seller has no collective bargaining agreements with any furnished to Buyer a true and complete list (the “Employee List”) of its the names, titles, annualized salary and other compensation of all employees. There is no labor union organizing activity pending or, to Abraxas’ knowledgeconsultants and independent contractors of Seller or Seller’s Affiliates engaged in the Business (listing separately base compensation, threatened with respect to Abraxas. To Abraxas’ knowledgelong-term or other incentive compensation and bonuses) and indicated which of such individuals were, no employee as of each the date set forth therein, on disability leave, authorized leave of Abraxas and its Subsidiariesabsence, nor any consultant with whom each of Abraxas and its Subsidiaries has contractedmilitary service, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating type of leave of absence, authorized or otherwise. With respect to the right of any such individual to be employed byBusiness, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.
(b) Neither Abraxas nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries Seller has complied in all material respects with all pertinent applicable laws relating to the employment of labor prior to the Closing, including, but not limited to, the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Section 2101 et seq. (i) all “WARN Act”), the Directive, ERISA, continuation coverage requirements with respect to group health plans as required by Code Section 4980B or ERISA Sections 601 through 608 (“COBRA”), and related applicable state laws, the applicable requirements of the Health Insurance Portability and federal equal employment opportunity laws and with Accountability Act of 1996, and, to Seller’s Knowledge, any applicable federal, state, local, foreign or other laws related to employment, including those related relating to wages, hours, worker classification, collective bargaining, and unemployment insurance, leaves of absence, workers’ compensation, military service, immigration control, the payment and withholding of taxes employment Taxes, and other sums as required by law and (ii) all applicable laws relating equal employment opportunity. With respect to the Benefit Plans. Each Business, Seller has, or is obligated by, no employment contracts, either written or oral, with any Person, except as set forth on the Employee List, true and complete copies of Abraxas and its Subsidiaries has withheld and paid which have been provided to Buyer.
(b) Except as set forth on Schedule 3.13(b), neither Seller nor any Affiliates of Seller engaged in the Business are party to any collective bargaining agreement or any other agreement with any labor organization applicable to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each the Business, and neither Seller nor any Affiliates of Abraxas and its Subsidiaries and is not liable for Seller engaged in the Business have a duty to bargain with any arrears of wages, taxes, penaltieslabor organization with respect to any such employees. There are no unfair labor practice complaints pending, or to Seller’s Knowledge threatened, against Seller and related to the Business before the National Labor Relations Board or any other sums Governmental Authority, and no demands for failure recognition, whether by way of petition filed with the National Labor Relations Board or otherwise, and to comply Seller’s Knowledge, no other effort of or request or demand from a labor organization for representative status with respect to any employee of Seller or any Affiliates of Seller engaged in the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planBusiness.
(c) None Schedule 3.13(c) sets forth a true, correct and complete list of the each Employee Plan and each Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) Arrangement, copies or descriptions of ERISA. Each Benefit Plan all of which is intended have previously been furnished to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)Buyer.
(d) The execution Each Employee Plan and delivery of, Benefit Arrangement has been administered and performance enforced in accordance with its terms and applicable legal requirements in all material respects. As of the transactions contemplated indate hereof, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(e) There there is no pending litigationlitigation or claim pending, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxasthe Seller, is threatened, relating to any such litigationEmployee Plan or Benefit Arrangement, audit, investigation or other proceeding threatenedthan routine benefit claims.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tollgrade Communications Inc \Pa\)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining Effective as of the Closing, Purchaser shall, and shall cause its Affiliates to, continue the employment of each employee listed on Schedule 7.17(a) (the “Continuing Ferndale Employees”) for a period of three months after the Closing Date on terms and conditions set forth in the letter agreements with each of such Continuing Ferndale Employees. Nothing in this Agreement shall be construed as prohibiting Purchaser or any of its employees. There is no labor union organizing activity pending or, to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to Affiliates (including the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate Companies) from terminating the employment of any officerContinuing Employees for any or no reason following the Closing Date; provided, key employee however, Seller shall not have any responsibility for any such actions taken by Purchaser or group any of employeesits Affiliates (including the Companies).
(b) Neither Abraxas nor Purchaser shall, and shall cause its Affiliates to, cause those employee benefit plans, programs, agreements and arrangements of Purchaser and its Affiliates (the “Purchaser Plans”) to credit each employee of the Companies who was employed by any such entities immediately prior to the Closing and the Continuing Ferndale Employees (collectively, the “Continuing Employees”) with such Continuing Employee’s service with a Company or an Affiliate of a Company, or any predecessor employers to a Company or an Affiliate of a Company, to the extent credited under the analogous Plans, as service with Purchaser and its Subsidiaries is delinquent Affiliates for purposes of vesting and eligibility under the Purchaser Plans in payments which a Continuing Employee becomes eligible to participate after the Closing Date and for purposes of determining the amount of benefits under any Purchaser Plan that provides for severance, disability, vacation, paid time off and the like; provided, however, that in no event shall the Continuing Employees be entitled to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it credit to the date hereof or amounts required extent that it would result in duplication of benefits with respect to be reimbursed to such employeesthe same period of service. Purchaser shall, consultantsand shall cause its Affiliates to, or independent contractors. Each of Abraxas from and its Subsidiaries has complied in all material respects with after the Closing Date, (i) cause any and all applicable state pre-existing condition limitations, eligibility waiting periods, active employment requirements and federal equal employment opportunity laws requirements to show evidence of good health under the Purchaser Plans, to the extent that such conditions, exclusions and waiting periods would have been waived or satisfied under the analogous Plan in which any such Continuing Employee participated immediately prior to the Closing Date, to be waived with other laws related respect to employment, including those related to wages, hours, worker classification, collective bargaining, Continuing Employees (and the payment their spouses and withholding of taxes and other sums as required by law eligible dependents) who become participants in such Purchaser Plans and (ii) give credit for or otherwise take into account under the Purchaser Plans the out-of-pocket expenses and annual expense limitation amounts paid by each Continuing Employee under the analogous Plan for the year in which the Closing Date occurs. Except as otherwise provided in this Agreement or the Transition Services Agreement, Seller shall retain all applicable laws relating to of the Benefit employee benefit plans, programs, agreements and arrangements of Seller and its Affiliates (other than the Companies) (the “Seller Plans”) and all of the liabilities and obligations arising from such Seller Plans. Each of Abraxas and its Subsidiaries has withheld and paid Seller retains the right to the appropriate governmental entity change or is holding for payment not yet due to discontinue such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for Seller Plans at any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) plantime.
(c) None For a period of at least three months immediately following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide severance benefits to the Continuing Ferndale Employees that are no less favorable than (i) those provided to such Continuing Ferndale Employees immediately prior to the Closing Date or (ii) those provided to similarly situated employees of Purchaser and its Affiliates from time to time, whichever provides the greater benefit to the Continuing Ferndale Employees.
(d) Effective as of the Benefit Plans is Closing Date, Continuing Employees shall no longer actively participate in the Hxxxx Lemmerz International, Inc. Retirement Savings Plan (the “Seller’s Savings Plan”). Purchaser shall adopt, or if it has previously adopted shall designate, a tax-qualified defined contribution plan of Purchaser or one of its Affiliates (such plan(s), the “multiemployer planPurchaser’s Savings Plan”) that either (i) provides for the receipt from Continuing Employees of “eligible rollover distributions” (as such term is defined in under Section 3(37402 of the Code) or (ii) shall be amended as soon as practicable following the Closing Date to provide for the receipt from the Continuing Employees of ERISAeligible rollover distributions. Each Benefit Plan which is intended The Seller shall cause all Continuing Employees to be qualified fully vested in their accounts under the Seller’s Savings Plan as of the Closing. Seller represents and warrants to Purchaser that Seller has suspended employer matching contributions under Seller’s Savings Plan for the period from May 8, 2006 through December 31, 2006. As soon as administratively feasible following the Closing Date, Seller shall cause all assets attributable to Continuing Employees as of the Closing Date in Seller’s Savings Plan to be liquidated in anticipation of a transfer of such assets (a “Plan-to-Plan Transfer”) to the Purchaser’s Savings Plan. Any outstanding loan balances under the Seller’s Savings Plan attributable to any Continuing Employee shall not be liquidated. As soon as practicable following the Closing Date, Seller shall provide to Purchaser a list of any such loans (including the date, outstanding balance, interest rate and payment schedule of any such loan), such loans shall be transferred to Purchaser’s Savings Plan pursuant to the Plan-to-Plan Transfer, and any payments on such loans made on or after the Closing Date shall be endorsed (as applicable) and delivered to Purchaser’s Savings Plan. As soon as administratively feasible (but in no event later than three business days following the foregoing liquidation of assets), Seller shall cause Seller’s Savings Plan to transfer the full amount of cash resulting from such liquidation to Purchaser’s Savings Plan, and Purchaser shall cause Purchaser’s Savings Plan to accept such transfer. Purchaser and Seller shall take such other and further action as may be necessary or appropriate (including the adoption of necessary or appropriate plan amendments) to accomplish the Plan-to-Plan Transfer in a timely manner, consistent with the relevant requirements of Section 401(a414(l) of the Code is so qualifiedand the regulations thereunder. Neither Abraxas nor any of its Subsidiaries is and Purchaser has not ever been (i) members of a “controlled group of corporations,” no obligation under “common control” this Agreement to make contributions to Purchaser’s Savings Plan, except for contributions with respect to compensation paid by Purchaser or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of Companies to employees after the Code, (ii) required Closing Date relating to be aggregated under Section 414(o) of periods prior to the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)Closing Date.
(de) The execution In accordance with the Accounting Principles, Seller will retain liability for payments under the Hxxxx Lemmerz International Short Term Incentive Plan and delivery ofthe Hxxxx Lemmerz International Gain Sharing Plan with respect to amounts payable to employees of the Companies and will pay any amounts due to such employees within thirty (30) days after the Closing. In accordance with the Accounting Principles, Purchaser will be responsible for medical and workers’ compensation costs relating to the employees of the Companies and the Continuing Ferndale Employees incurred prior to Closing, and performance of Purchaser shall cause the transactions contemplated in, this Agreement will not Companies to pay such medical and workers’ compensation costs. Seller has provided information to Purchaser regarding the Companies’ medical and workers’ compensation costs and shall continue to provide such information as Purchaser shall reasonably request regarding such costs prior to Closing.
(either alone or upon the occurrence of any additional or subsequent eventsf) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund Seller shall be responsible for maintaining long-term disability insurance benefits with respect to any current employee or former employee, officer, director employee of the Companies who is receiving such benefits as of the Closing or independent contractor of each of Abraxas and its Subsidiaries or (ii) becomes eligible to receive such benefits as a result in the triggering or imposition of any restrictions event or limitations disability that occurs on or prior to Closing. After the right of each of Abraxas and its Subsidiaries Closing, Purchaser shall be responsible for short-term disability benefits with respect to amend or terminate any Benefit Plan (or result in any adverse consequence for any Continuing Employee who is receiving such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized benefits as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeClosing. Schedule 7.17(f) lists the Continuing Employees who are receiving short-term disability benefits.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hayes Lemmerz International Inc)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements Except as provided below, nothing contained herein shall require LabOne to assume any Company Benefit Plans or accept the transfer of any assets or liabilities arising out of or associated with any of its employeesCompany Benefit Plans. There is no labor union organizing activity pending or, All liabilities and obligations for retiree medical and life benefits payable on or after the date hereof to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because current retirees of the nature of Xxxxxx Entities, as determined on the business to date hereof, shall be conducted paid by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesChoicePoint.
(b) Neither Abraxas As of the date hereof, LabOne or an Affiliate thereof shall continue the employment of the Employees listed on Schedule 6.5(b)(i) (each such Employee who continues such employment being referred to individually herein as a "Transferred Employee" and all such Employees who continue such employment being referred to collectively herein as the "Transferred Employees"); provided, however, nothing contained herein shall be deemed to create an employment contract between LabOne and any Transferred Employee. Effective on the date hereof, pursuant to an employee secondment agreement mutually acceptable to the parties (the "Employee Secondment Agreement"), LabOne shall lease from CHS, for the transition period or periods contemplated by the Employee Secondment Agreement, the Employees listed on Schedule 6.5(b)(ii) (the "Xxxxxx Contract Employees"), and all Xxxxxx Contract Employees shall become employees of CHS and shall remain eligible to participate in the Company Benefit Plans for the duration of the transition period.
(c) ChoicePoint shall be solely responsible for terminating the Employees who are neither Transferred Employees nor any Xxxxxx Contract Employees ("Unaffected Employees"). ChoicePoint shall be solely responsible and assume liability for the termination of its Subsidiaries is delinquent in the Xxxxxx Contract Employees and for all notices or payments due to any of its employees, consultants, Unaffected Employees or independent contractors for any wages, salaries, commissions, bonuses, Xxxxxx Contract Employees prior to or other direct compensation for any service performed for it subsequent to the date hereof, and all notices, payments, fines or assessments due to any Governmental Authority, pursuant to any applicable Law with respect to the employment, discharge, constructive discharge or layoff due to any Unaffected Employees or Xxxxxx Contract Employees before or after the date hereof, including but not limited to the Workers Adjustment and Retraining Act (the "WARN Act") and the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and any rules or regulations that have been issued in connection with the foregoing.
(d) For the period beginning on the date hereof or amounts required to be reimbursed to such employeesand ending no earlier than December 31, consultants2001, LabOne shall, or independent contractors. Each of Abraxas shall cause the Xxxxxx Entities to, provide each Transferred Employee and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employmenteach Xxxxxx Contract Employee who, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating subsequent to the Benefit Plans. Each transition period contemplated by the Employee Secondment Agreement, accepts an offer of Abraxas employment with LabOne (collectively, the "Hired Employees") with compensation and its Subsidiaries has withheld and paid benefits that are substantially comparable in the aggregate to the appropriate governmental entity or is holding for payment not yet due compensation and benefits provided to such governmental entity similarly situated LabOne employees. LabOne shall treat all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply service completed by a Hired Employee with any of the foregoing. The only “Xxxxxx Entities or any Affiliate thereof, and any predecessor thereto, the same as service completed with LabOne for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under any employee pension benefit plan (including, but not limited to, any "employee benefit plan” " as defined in Section 3(3) of ERISA) maintained by LabOne on or after the date hereof in which a Hired Employee participates, except for purposes of computing benefits under the accrued benefit formula in a pension plan (within the meaning of as defined in Section 3(2) of ERISA) sponsored by ). Prior to the date hereof, ChoicePoint has furnished LabOne with a list of the length of service with the Xxxxxx Entities or its Affiliates for each of Abraxas and its Subsidiaries is Abraxas’ 401(kthe Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan.
(c) None of the Benefit Plans is a “multiemployer plan” " as such term is defined in Section 3(373(l) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with Xxxxxx Entities or any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of Affiliate shall be credited or recognized under the transactions contemplated in, this Agreement will not (either alone or upon comparable plan maintained after the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated date hereof by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeLabOne.
(e) There is no pending litigationAfter the date hereof, auditLabOne shall be responsible for, investigation or and shall indemnify and hold harmless ChoicePoint and its Affiliates and their officers, directors, employees, Affiliates and agents and the fiduciaries (including plan administrators) of the Company Benefit Plans, from and against, any and all claims, losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses) and other proceeding liabilities and obligations, with respect to the Transferred Employees, relating to or arising out of all salaries, bonuses, commissions, vacation entitlements and other benefits accrued and included on the Final Working Capital Statement by any Benefit of the Xxxxxx Entities but unpaid as of the date hereof.
(f) After the Closing Date, ChoicePoint agrees to use its best efforts to facilitate as soon as reasonably practicable, in accord with applicable Law, any request made by any Hired Employee for a rollover of an account balance from the ChoicePoint Inc. 401(k) Profit Sharing Plan or to the employmentLabOne 401(k) Plan (the "LabOne 401(k) Plan"). LabOne agrees to accept such rollovers into the LabOne 401(k) Plan upon the receipt of satisfactory documentation from ChoicePoint.
(g) ChoicePoint agrees to assign to LabOne all rights associated with and pertaining to all nondisclosure, termination confidentiality, invention assignment and noncompetition agreements between any of employment, compensation the Employees and ChoicePoint or employee benefits any of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedits Affiliates.
Appears in 1 contract
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any Immediately before the Closing, the Selling Companies shall terminate all of its their employees and immediately after the Closing, Parent or Newco shall offer employment to all of such employees, subject to Parent’s standard employment procedures. There is no labor union organizing activity pending orThe Selling Companies shall be responsible for severance payments or unemployment benefits created by or imposed upon the Selling Companies by law, to Abraxas’ knowledgeif any, threatened with respect to Abraxas. To Abraxas’ knowledge, no due either as a result of the transactions contemplated under this Agreement or as a result of a particular employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will Selling Companies not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their accepting employment with each of Abraxas the Parent or Newco. Notwithstanding the foregoing, Parent shall administer and its Subsidiaries, nor pay for any COBRA obligations related to any employee who does each of Abraxas and its Subsidiaries have a present intention to terminate not accept employment with the employment of any officer, key employee Parent or group of employeesNewco after the Closing.
(b) Neither Abraxas nor Following the Closing, Parent or Newco shall provide individuals who accept employment with the Parent or Newco after the Closing Date (the “Affected Employees”), for so long as such Affected Employees remain employed by Parent, Newco or any Subsidiary of Parent or Newco, employee benefits that are comparable to those provided to employees of Parent in positions comparable to positions held by Affected Employees with Parent, Newco or its Subsidiaries is delinquent from time to time after the Closing Date. For purposes of eligibility to participate and vesting in payments all benefits provided to any Affected Employees (and covered dependents) including vacation time, Affected Employees will be credited with their years of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas with STS and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planSubsidiaries.
(c) None In the event that Parent or Newco terminates the employment of any Affected Employee who accepts employment with Parent or Newco and executes the Parent’s confidentiality agreement and non-competition agreement the form of which is attached hereto as Exhibit D (the “Employee Agreements”) without Cause (as defined on Schedule 6.11(c) attached hereto) within six (6) months of the Benefit Plans is a Closing (the “multiemployer plan” as Employment Period”), Parent or Newco shall pay such term is defined in Section 3(37terminated Affected Employee severance equal to one (1) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) months’ base pay for such Affected Employee for each month remaining until the conclusion of the Code Employment Period; provided, however, no such Affected Employee shall be entitled to any severance to the extent such Affected Employee is so qualified. Neither Abraxas nor offered comparable employment within a 30 mile radius of Big Lake, Minnesota with Parent or any of its Subsidiaries is and has not ever been Affiliates (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within which term, for these purposes, shall include the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”Subsidiaries).
(d) The execution Prior to the Closing, STS shall terminate any agreements between STS and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any its current or former employeeemployees, officer, director officers or independent contractor directors that provide for any change of each control or severance payments or commitment of Abraxas and its Subsidiaries employment or (ii) result payments in the triggering or imposition future (the “Change of any restrictions or limitations on the right Control Agreements”) and will pay all amounts due under such agreements. Any such payments shall be deemed to be Bonus Payments for purposes of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeAgreement.
(e) There is no pending litigationNothing contained in this Section 6.11 shall create any third party beneficiary rights in any manager, auditofficer or employee or former manager, investigation officer or employee (including any beneficiary or dependent thereof) of the Selling Companies in respect of continued employment for any specified period of any nature or kind whatsoever.
(f) Notwithstanding anything to the contrary in this Section 6.11, an Affected Employee shall not be entitled to receive severance payments under this Section 6.11 if he or she voluntarily terminates his or her employment with Parent or Newco.
(g) Subject to the indemnification obligations set forth in Section 9.1(c), any health savings account, flexible spending account or other proceeding relating such accounts maintained by STS for the Affected Employees set forth on Schedule 6.11(g) attached hereto (the “HSAs”) shall be transferred to Parent or Newco at the Closing, including any Benefit Plan and all documentation related thereto. The Board of STS shall take any corporate actions necessary to transfer such HSAs to Parent or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedNewco.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iowa Telecommunications Services Inc)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements with any As of the Closing Date, the Company shall terminate its participation in each Company Employee Benefit Plan that is not sponsored, contributed to or maintained exclusively by the Company (but that is also sponsored, contributed to or maintained by Seller or one of its employees. There is other Affiliates), and in no labor union organizing activity pending or, event shall any Company Employee be entitled to Abraxas’ knowledge, threatened accrue any benefits under such Company Employee Benefit Plans with respect to Abraxasservices rendered or compensation paid on or after the Closing Date. To Abraxas’ knowledgeThe Company shall retain all rights, no employee of each of Abraxas Liabilities and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because of the nature of the business to be conducted by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employeesresponsibilities under, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas neither Seller nor any of its Subsidiaries received other Affiliates shall have any notice alleging Liability or responsibility under, each Company Employee Benefit Plan that is sponsored, contributed to or maintained exclusively by the Company or any such violation has occurred. Neither Abraxas nor any Company Subsidiary (and that is not also sponsored, contributed to or maintained by Seller or one of its Subsidiaries is aware that other Affiliates) from and after the Closing Date; provided that, nothing shall prevent the Company or Purchaser from amending or terminating any officerCompany Employee Benefit Plan sponsored, key employee contributed to or group of employees intends to terminate his, her maintained exclusively by the Company in accordance with its terms and Applicable Law at any time on or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate after the employment of any officer, key employee or group of employeesClosing Date.
(b) Neither Abraxas nor From and after the Closing Date, Purchaser shall cause each Company Employee's service prior to the Closing Date with the Company or any predecessor thereof to be treated as service with Purchaser and its subsidiaries solely for purposes of determining eligibility to participate, level of benefits, accrual rate and vesting under any employee benefit plans, programs or arrangements of Purchaser and its Subsidiaries is delinquent subsidiaries in payments which Company Employees may be eligible to participate from and after the Closing Date (including with respect to any of its employeesvacation, consultantspaid time-off and severance benefits), or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof same extent such service was recognized under Company Employee Benefit Plans immediately prior to the Closing Date; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits. With respect to any welfare benefit plans maintained by Purchaser or amounts required its subsidiaries for the benefit of Company Employees (and any dependents or beneficiaries thereof) from and after the Closing Date, Purchaser shall cause such plans to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employmentwaive any preexisting condition limitations, including those related to wagesexclusions, hoursactively-at-work requirements, worker classification, collective bargaining, and the payment and withholding of taxes waiting periods and other sums as required by law similar restrictions with respect to Company Employees (or any dependents or beneficiaries thereof), to the extent such restrictions were not applicable to such Company Employees (or dependents or beneficiaries thereof) immediately prior to the Closing Date, and (ii) recognize all applicable laws relating co-payments, deductibles and other similar expenses incurred by Company Employees (or any dependents or beneficiaries thereof) during the calendar year in which the Closing Date occurs, to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid extent such expenses were recognized immediately prior to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas and its Subsidiaries is Abraxas’ 401(k) planClosing Date.
(c) None During the Interim Period, prior to making any communications or announcements, oral or written, to Company Employees pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, Purchaser shall provide Seller with the proposed communication or announcement in writing, Seller shall have a reasonable period of time to review and comment on the Benefit Plans is a “multiemployer plan” as such term is defined proposed communication or announcement, and Purchaser shall take Seller's comments into consideration in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”)good faith.
(d) The execution Parties acknowledge and delivery ofagree that all provisions contained in this Section 6.04 are included for the sole benefit of the Parties, and performance of the transactions contemplated inthat nothing in this Agreement, this Agreement will not (either alone whether express or upon the occurrence implied, shall be treated as an amendment or other modification of any additional Company Employee Benefit Plan or subsequent events) other benefit plan, agreement or other arrangement, or shall create any third party beneficiary or other right (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment other Person, including any Company Employee or any participant in any Company Employee Benefit Plan or other benefit plan, agreement or other arrangement (whether of severance pay or otherwiseany dependent or beneficiary thereof), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in to continued employment with Purchaser, Seller or any of their respective Affiliates.
(e) During the triggering or imposition Interim Period, the Company shall submit to a vote of any restrictions or limitations on the Seller (or, if required by Code Section 280G, the holders of the securities of the Seller's Parent) the right of each any “disqualified individual” (as defined in Section 280G(c) of Abraxas the Code) to receive the portion of any Parachute Payments described in subsections (1) and (2) below that could constitute “excess parachute payments” (as defined in Section 280G(a) of the Code), such that no such Parachute Payments received by such “disqualified individual” cease to be deductible by the Company as a result of the application of Code Section 280G. In addition, with respect to Parachute Payments described in subsection (3) below, the Company shall update its Subsidiaries 280G Consent Documents to amend include such payments to the extent that they could constitute “excess parachute payments” and provide the waivers to the disqualified individuals for such individuals to decide whether to submit such payments or terminate any Benefit Plan benefits to the vote described in this Section 6.04(e) (and actually submit such payments or result in any adverse consequence for any benefits to such actionvote if one or more of the disqualified individuals elects by executing a waiver). No payment The Company shall provide to Purchaser a complete copy of the written documents distributed to the Seller (or, if required by Code Section 280G, the holders of the securities of the Seller's Parent) describing such payments and the solicitation of such vote (“280G Consent Documents”). “Parachute Payments” shall mean payments or benefit other benefits that will or may be made in connection with are contingent on the consummation of the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1and that are (1) of the Code.
(e) There is no pending litigation, audit, investigation required or other proceeding relating to any Benefit Plan or provided for pursuant to the employmentterms of this Agreement, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor norincluding, to the knowledge extent applicable, the rights to the Employee Payments, Specified Project Employee Payments and the Austin Employee Payments, (2) payable under any other agreement in existence as of Abraxasthe date hereof under a plan or agreement maintained by the Company or Seller, or (3) payable pursuant to a plan or agreement established by Purchaser or MEMC after the date hereof but prior to the Closing Date, provided that Company's benefits counsel is any notified in writing by Purchaser's benefits counsel of the terms of such litigation, audit, investigation plan or other proceeding threatenedagreement at least seven (7) days prior to the Closing Date.
Appears in 1 contract
Samples: Stock Sale Agreement (Memc Electronic Materials Inc)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements For the purposes of this Agreement, the term "Active Employees" shall mean each person employed by a Subject Company as of the Closing Time who is performing work duties in connection with the Business for such Subject Company or is absent from work (1) by reason of a scheduled day off; (2) by reason of a sick day or a paid vacation day, personal day or holiday; (3) by reason of a family or medical leave covered under Section 102 of the Family and Medical Leave Act of 1993 or any comparable foreign law; or (4) due to any short-term disability or other authorized leave or suspension under such Subject Company's policies or practices. Purchaser shall, as of its employeesthe Closing Time, offer employment to all Active Employees of the Asset Seller who are not employed in the United Kingdom. There Such employment may be employment at will. For the avoidance of doubt, the parties intend that the contracts of employment of those Active Employees of the Asset Seller who are employed in the United Kingdom and all rights and duties and obligations of the Asset Seller thereunder shall be automatically transferred to the Purchaser with effect from the Closing Time. Active Employees of the Asset Seller who accept employment with Purchaser pursuant to this Section 5.5(a) together with the Active Employees of the Acquired Company are referred to collectively as "Continuing Employees." If any Continuing Employee is no labor union organizing activity pending ordischarged by Purchaser or Purchaser's Affiliates, then Purchaser shall be responsible for any and all severance costs for such Continuing Employee under any severance benefit plan or arrangement maintained or entered into by Purchaser, Purchaser's Affiliates or the Acquired Company. Purchaser shall be responsible and assume all liability for all notices or payments due to Abraxas’ knowledgeany Continuing Employees, threatened and all notices, payments, fines or assessments due to any Governmental Entity, pursuant to any applicable foreign, federal, state or local law, common law, statute, rule or regulation with respect to Abraxas. To Abraxas’ knowledgethe employment, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement discharge or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because layoff of the nature Continuing Employees, including without limitation, the WARN Act, Section 4980B of the business to be conducted by each Internal Revenue Code, Title X of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each Consolidated Omnibus Budget Reconciliation Act of Abraxas and its Subsidiaries of its present employees1985, as amended ("COBRA"), and the performance of each of Abraxas and its Subsidiaries’ contracts any rules or regulations as have been issued in connection with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.
(b) Neither Abraxas nor any of its Subsidiaries is delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. Each of Abraxas and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating to the Benefit Plans. Each of Abraxas and its Subsidiaries has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. The only “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) sponsored by each of Abraxas Asset Seller acknowledges and its Subsidiaries is Abraxas’ 401(k) plan.
(c) None of the Benefit Plans is a “multiemployer plan” as such term is defined in Section 3(37) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b)assumes all liabilities, (c) or (m) of the Codeif any, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits comparable foreign law with respect to any current or former employee, officer, director or independent contractor all of its employees as of the Closing Time who do not become Continuing Employees. The Purchaser and the Asset Seller shall cooperate in signing and sending to each of Abraxas and its Subsidiaries or (ii) result the Continuing Employees who were Active Employees employed in the triggering or imposition United Kingdom forthwith after the Closing Time a notice of any restrictions or limitations on transfer of employment in the right of each of Abraxas and agreed form. The parties' cooperation in this respect shall not constitute an admission that the other party has complied with its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) duties under Regulation 10 of the CodeTransfer of Undertakings (Protection of Employment) Regulation 1981.
(e) There is no pending litigation, audit, investigation or other proceeding relating to any Benefit Plan or to the employment, termination of employment, compensation or employee benefits of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatened.
Appears in 1 contract
Samples: Purchase Agreement (Fibermark Inc)
Employees; Employee Benefits. (a) Abraxas has no collective bargaining agreements Except as provided below, nothing contained herein shall require LabOne to assume any Company Benefit Plans or accept the transfer of any assets or liabilities arising out of or associated with any of its employeesCompany Benefit Plans. There is no labor union organizing activity pending or, All liabilities and obligations for retiree medical and life benefits payable on or after the date hereof to Abraxas’ knowledge, threatened with respect to Abraxas. To Abraxas’ knowledge, no employee of each of Abraxas and its Subsidiaries, nor any consultant with whom each of Abraxas and its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, each of Abraxas and its Subsidiaries because current retirees of the nature of Oxxxxx Entities, as determined on the business to date hereof, shall be conducted paid by each of Abraxas and its Subsidiaries; and to Abraxas’ knowledge the continued employment by each of Abraxas and its Subsidiaries of its present employees, and the performance of each of Abraxas and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. Neither Abraxas nor any of its Subsidiaries received any notice alleging that any such violation has occurred. Neither Abraxas nor any of its Subsidiaries is aware that any officer, key employee or group of employees intends to terminate his, her or their employment with each of Abraxas and its Subsidiaries, nor does each of Abraxas and its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employeesChoicePoint.
(b) Neither Abraxas As of the date hereof, LabOne or an Affiliate thereof shall continue the employment of the Employees listed on Schedule 6.5(b)(i) (each such Employee who continues such employment being referred to individually herein as a "Transferred Employee" and all such Employees who continue such employment being referred to collectively herein as the "Transferred Employees"); provided, however, nothing contained herein shall be deemed to create an employment contract between LabOne and any Transferred Employee. Effective on the date hereof, pursuant to an employee secondment agreement mutually acceptable to the parties (the "Employee Secondment Agreement"), LabOne shall lease from CHS, for the transition period or periods contemplated by the Employee Secondment Agreement, the Employees listed on Schedule 6.5(b)(ii) (the "Oxxxxx Contract Employees"), and all Oxxxxx Contract Employees shall become employees of CHS and shall remain eligible to participate in the Company Benefit Plans for the duration of the transition period.
(c) ChoicePoint shall be solely responsible for terminating the Employees who are neither Transferred Employees nor any Oxxxxx Contract Employees ("Unaffected Employees"). ChoicePoint shall be solely responsible and assume liability for the termination of its Subsidiaries is delinquent in the Oxxxxx Contract Employees and for all notices or payments due to any of its employees, consultants, Unaffected Employees or independent contractors for any wages, salaries, commissions, bonuses, Oxxxxx Contract Employees prior to or other direct compensation for any service performed for it subsequent to the date hereof, and all notices, payments, fines or assessments due to any Governmental Authority, pursuant to any applicable Law with respect to the employment, discharge, constructive discharge or layoff due to any Unaffected Employees or Oxxxxx Contract Employees before or after the date hereof, including but not limited to the Workers Adjustment and Retraining Act (the "WARN Act") and the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and any rules or regulations that have been issued in connection with the foregoing.
(d) For the period beginning on the date hereof or amounts required to be reimbursed to such employeesand ending no earlier than December 31, consultants2001, LabOne shall, or independent contractors. Each of Abraxas shall cause the Oxxxxx Entities to, provide each Transferred Employee and its Subsidiaries has complied in all material respects with (i) all applicable state and federal equal employment opportunity laws and with other laws related to employmenteach Oxxxxx Contract Employee who, including those related to wages, hours, worker classification, collective bargaining, and the payment and withholding of taxes and other sums as required by law and (ii) all applicable laws relating subsequent to the Benefit Plans. Each transition period contemplated by the Employee Secondment Agreement, accepts an offer of Abraxas employment with LabOne (collectively, the "Hired Employees") with compensation and its Subsidiaries has withheld and paid benefits that are substantially comparable in the aggregate to the appropriate governmental entity or is holding for payment not yet due compensation and benefits provided to such governmental entity similarly situated LabOne employees. LabOne shall treat all amounts required to be withheld from employees of each of Abraxas and its Subsidiaries and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply service completed by a Hired Employee with any of the foregoing. The only “Oxxxxx Entities or any Affiliate thereof, and any predecessor thereto, the same as service completed with LabOne for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under any employee pension benefit plan (including, but not limited to, any "employee benefit plan” " as defined in Section 3(3) of ERISA) maintained by LabOne on or after the date hereof in which a Hired Employee participates, except for purposes of computing benefits under the accrued benefit formula in a pension plan (within the meaning of as defined in Section 3(2) of ERISA) sponsored by ). Prior to the date hereof, ChoicePoint has furnished LabOne with a list of the length of service with the Oxxxxx Entities or its Affiliates for each of Abraxas and its Subsidiaries is Abraxas’ 401(kthe Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan.
(c) None of the Benefit Plans is a “multiemployer plan” " as such term is defined in Section 3(373(l) of ERISA. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code is so qualified. Neither Abraxas nor any of its Subsidiaries is and has not ever been (i) members of a “controlled group of corporations,” under “common control” or an “affiliated service group” within the meaning of Sections 414(b), (c) or (m) expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Code, (ii) required to be aggregated under Section 414(o) of the Code or (iii) under “common control,” within the meaning of Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed under any of the foregoing Sections, in each case with Oxxxxx Entities or any other entity (an “ERISA Affiliate”).
(d) The execution and delivery of, and performance of Affiliate shall be credited or recognized under the transactions contemplated in, this Agreement will not (either alone or upon comparable plan maintained after the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, director or independent contractor of each of Abraxas and its Subsidiaries or (ii) result in the triggering or imposition of any restrictions or limitations on the right of each of Abraxas and its Subsidiaries to amend or terminate any Benefit Plan (or result in any adverse consequence for any such action). No payment or benefit that will or may be made in connection with the transactions contemplated date hereof by this Agreement will be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the CodeLabOne.
(e) There is no pending litigationAfter the date hereof, auditLabOne shall be responsible for, investigation or and shall indemnify and hold harmless ChoicePoint and its Affiliates and their officers, directors, employees, Affiliates and agents and the fiduciaries (including plan administrators) of the Company Benefit Plans, from and against, any and all claims, losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses) and other proceeding liabilities and obligations, with respect to the Transferred Employees, relating to or arising out of all salaries, bonuses, commissions, vacation entitlements and other benefits accrued and included on the Final Working Capital Statement by any Benefit of the Oxxxxx Entities but unpaid as of the date hereof.
(f) After the Closing Date, ChoicePoint agrees to use its best efforts to facilitate as soon as reasonably practicable, in accord with applicable Law, any request made by any Hired Employee for a rollover of an account balance from the ChoicePoint Inc. 401(k) Profit Sharing Plan or to the employmentLabOne 401(k) Plan (the "LabOne 401(k) Plan"). LabOne agrees to accept such rollovers into the LabOne 401(k) Plan upon the receipt of satisfactory documentation from ChoicePoint.
(g) ChoicePoint agrees to assign to LabOne all rights associated with and pertaining to all nondisclosure, termination confidentiality, invention assignment and noncompetition agreements between any of employment, compensation the Employees and ChoicePoint or employee benefits any of any current or former employee, director or independent contractor nor, to the knowledge of Abraxas, is any such litigation, audit, investigation or other proceeding threatenedits Affiliates.
Appears in 1 contract
