ERISA; Benefit Plans. (a) Schedule 3.15(a) contains a true and complete list of all employment-related plans, including but not limited to, employment or consulting agreements, collective bargaining and supplemental agreements, pension, profit sharing, stock bonus, defined contribution, supplemental executive retirement, incentive, bonus, deferred compensation, retirement, stock option, stock purchase, severance, medical and hospitalization, disability, life insurance, long term care, vacation, salary continuation, sick pay, welfare, fringe benefit and other employee benefit plans, contracts, programs, policies and arrangements, whether written or oral, which MSP maintains or has maintained, or under which MSP has or had any obligations with respect to any employee of MSP, now or at any time during the five year period ending on the Closing Date (the "MSP Plans"). (b) Except as set forth in Schedule 3.15(b), (i) MSP has no unfunded liabilities in connection with any of the MSP Plans; (ii) all contributions, premium payments and other payments due from MSP to or under such MSP Plans have been paid in a timely manner; and (iii) all additional contributions, premium payments and other payments due on or before the Effective Time have been paid. (c) Except as set forth in Schedule 3.15(c), MSP has not made any commitments or taken any actions to adopt or establish any additional MSP Plans or to materially increase the benefits under any of the MSP Plans. (d) Except as set forth in Schedule 3.15(d), with respect to each of the MSP Plans: (i) each MSP Plan has been established, maintained, funded and operated and administered, in all material respects, in substantial compliance with its governing documents, and all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), other applicable law, and all regulations thereunder; (ii) all disclosures to employees and all government filings and other reports relating to each such MSP Plan and required (under ERISA, the Code, other applicable law, including federal and state securities laws, and all regulations thereunder) to have been made or filed on or before the Effective Time have been or will be duly and timely made or filed by that date; (iii) each of the MSP Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the IRS to be so qualified and MSP has obtained favorable determination letters from the IRS to such effect; (iv) no such determination letter has been revoked by the IRS, nor has the IRS given any written notice to MSP that it intends to revoke any such determination letter; (v) no reportable event within the meaning of Section 4043 of ERISA, or non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect to the MSP Plans and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof; (vi) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) has been waived or excused or has been paid or is owed by any person (including any MSP Plan, any MSP Plan fiduciary, and MSP) with respect to the operations of, or any transactions with respect to, any MSP Plan and no action has been taken, nor has there been any failure to act, that would subject any person or entity to any liability, tax or penalty in connection with any MSP Plan (including any tax or penalty for the failure to withhold income taxes in connection with fringe benefits); (vii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of the MSP Plans, including litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies, claims with respect to any bond or any fiduciary liability or other similar insurance with regard to actions of any person in connection with the MSP Plans, or notice of any such claim to any insurer under such bond or policy with regard to the MSP Plans; and (viii) no fiduciary of any of the MSP Plans has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration of or investment of the assets of any of the MSP Plans. (e) MSP has provided or will provide promptly to SET copies of all of the written MSP Plans listed on Schedule 3.15(a) and all related current and prior material documentation, including: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the MSP Plans, trustee reports, custodial reports, insurance contracts, fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third-party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan-to-plan transfers of assets and liabilities, any IRS Form 5500, IRS determination letters and/or private letter rulings and advisory opinions from either DOL or PBGC sought by any of the MSP Plans. For purposes of this subsection, "prior" means at least the three plan years preceding the Effective Time. (f) With respect to each of the MSP Plans, MSP will deliver promptly to SET true and complete copies of the participant and beneficiary records for the MSP Plans which accurately state the history of each participant and beneficiary in connection with the MSP Plans and which accurately state the benefits earned and/or owed to each person under the MSP Plans. (g) Except as set forth in Schedule 3.15(g), MSP is not a contributing employer to any multiemployer plan. (h) Except as set forth in Schedule 3.15(h), none of the MSP Plans provide, or have an obligation or commitment to provide, health benefits to any current or former employee of MSP, or any dependent of any such employee, beyond such employee's retirement or other termination of service, other than coverage mandated by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA"). (i) No amount payable under the MSP Plans is likely to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code. (j) Except as sent forth in Schedule 3.15(j), the MSP Plans that are subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act ("HIPAA") have been maintained in compliance with COBRA and HIPAA requirements, including all notice and certification requirements.
Appears in 1 contract
ERISA; Benefit Plans. (a) Schedule 3.15(a2.14(a) contains a true and complete list of all employment-related plans, including but not limited to, employment or consulting agreements, collective bargaining and supplemental agreements, pension, profit sharing, stock bonus, defined contribution, supplemental executive retirement, incentive, bonus, deferred compensation, retirement, stock option, stock purchase, severance, medical and hospitalization, disability, life insurance, long term care, vacation, salary continuation, sick pay, welfare, fringe benefit and other employee benefit plans, contracts, programs, policies and arrangements, whether written or oral, which MSP any Acquired Company or any entity that, together with any Acquired Company, would be treated as a single employer under Code Section 414(b), (c) or (m) ("ERISA Affiliate") maintains or has maintained, or under which MSP any Acquired Company has or had any obligations with respect to any employee of MSPany Acquired Company, now or at any time during the five year period ending on the Closing Date (the "MSP Plans").
(b) Except as set forth in Schedule 3.15(b2.14(b), (i1) MSP none of the Acquired Companies has no any unfunded liabilities in connection with any of the MSP Plans; (ii2) all contributions, premium payments and other payments due from MSP any Acquired Company to or under such MSP Plans have been paid in a timely manner; and (iii3) all additional contributions, premium payments and other payments due on or before the Effective Time Closing Date shall have been paidpaid by that date.
(c) Except as set forth in Schedule 3.15(c2.14(c), MSP has not none of the Acquired Companies or ERISA Affiliates have made any commitments commitment or taken any actions action to adopt or establish any additional MSP Plans or to materially increase the benefits under any of the MSP Plans.
(d) Except as set forth in Schedule 3.15(d2.14(d), with respect to each of the MSP Plans:
(i) each MSP Plan has been established, maintained, funded and funded, operated and administered, administered in all material respects, respects in substantial compliance with its governing documents, and all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), other applicable law, and all regulations thereunder;
(ii) all disclosures to employees and all government filings and other reports relating to each such MSP Plan and required (under ERISA, the Code, other applicable law, including federal and state securities laws, and all regulations thereunder) to have been made or filed on or before the Effective Time Closing Date have been or will be duly and timely made or filed by that date;
(iii) for each of the MSP Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the IRS to be so qualified and MSP has the Acquired Company or the ERISA Affiliate sponsoring such Plans have obtained favorable determination letters from the IRS to such effect;
(iv) no such determination letter has been revoked by the IRS, nor has the IRS given any written notice to MSP any Acquired Company or any ERISA Affiliate that it intends to revoke any such determination letter;
(v) no reportable event within the meaning of Section 4043 of ERISA, or non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect to the MSP Plans and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof;
(vi) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) has been waived or excused or has been paid or is owed by any person (including by not limited to any MSP Plan, any MSP Plan fiduciary, the Acquired Companies and MSPany ERISA Affiliate) with respect to the operations of, or any transactions with respect to, any MSP Plan and no action has been taken, nor has there been any failure to act, that would subject any person or entity to any liability, liability to tax or penalty in connection with any MSP Plan (including but not limited to any tax or penalty for the failure to withhold income taxes in connection with fringe benefits);
(vii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of the MSP Plans, including but not limited to litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies, claims with respect to any bond or any fiduciary liability or other similar insurance with regard to actions of any person in connection with the MSP Plans, or notice of any such claim to any insurer under such bond or policy with regard to the MSP Plans; and
(viii) no fiduciary of any of the MSP Plans has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration of or investment of the assets of any of the MSP Plans.
(e) MSP has The Sellers have provided or will provide promptly to SET the Purchaser copies of all of the written MSP Plans listed on Schedule 3.15(a2.14(a) and all related current and prior material documentation, includingincluding but not limited to: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the MSP Plans, trustee reports, custodial reports, insurance contracts, contracts fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third-party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan-to-plan transfers of assets and liabilities, any IRS Form 5500, IRS determination letters and/or private letter rulings and advisory opinions from either DOL or PBGC sought by any of the MSP Plans. For purposes of this subsection, "prior" means at least the three plan years preceding the Effective Time.
(f) With respect to each of the MSP Plans, MSP will deliver promptly to SET true and complete copies of the participant and beneficiary records for the MSP Plans which accurately state the history of each participant and beneficiary in connection with the MSP Plans and which accurately state the benefits earned and/or owed to each person under the MSP Plans.
(g) Except as set forth in Schedule 3.15(g), MSP is not a contributing employer to any multiemployer plan.
(h) Except as set forth in Schedule 3.15(h), none of the MSP Plans provide, or have an obligation or commitment to provide, health benefits to any current or former employee of MSP, or any dependent of any such employee, beyond such employee's retirement or other termination of service, other than coverage mandated by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA").
(i) No amount payable under the MSP Plans is likely to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(j) Except as sent forth in Schedule 3.15(j), the MSP Plans that are subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act ("HIPAA") have been maintained in compliance with COBRA and HIPAA requirements, including all notice and certification requirements.policies
Appears in 1 contract
Samples: Subsidiaries Stock Purchase Agreement (Noble International LTD)
ERISA; Benefit Plans. (a) Schedule 3.15(a) 2.12 contains a true and complete list of all employment-related plans, including but not limited to, employment or consulting agreements, collective bargaining and supplemental agreements, pension, profit sharing, stock bonus, defined contribution, supplemental executive retirement, incentive, bonus, deferred compensation, retirement, stock option, stock purchase, severance, medical and hospitalization, disability, life insurance, long term care, vacation, salary continuation, sick pay, welfare, fringe benefit and other employee benefit plans, contracts, programs, policies and arrangements, whether written or oral, which MSP Seller maintains or has maintained, or under which MSP Seller has or had any obligations with respect to any employee of MSPemployee, now or at any time during the five year period ending on the Closing Date (the "MSP Plans").
(b) Except as set forth in Schedule 3.15(b)2.12, (i1) MSP Seller has no unfunded liabilities in connection with any of the MSP Plans; (ii2) all contributions, premium payments and other payments due from MSP Seller to or under such MSP Plans have been paid in a timely manner; and (iii3) all additional contributions, premium payments and other payments due on or before the Effective Time Closing Date shall have been paidpaid by that date.
(c) Except as set forth in Schedule 3.15(c), MSP has not made any commitments or taken any actions to adopt or establish any additional MSP Plans or to materially increase the benefits under any of the MSP Plans.
(d) Except as set forth in Schedule 3.15(d)2.12, with respect to each of the MSP Plans:
(i) each MSP Plan has been established, maintained, funded and operated and administered, administered in all material respects, respects in substantial compliance accordance with its governing documents, and all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), other applicable law, and all regulations thereunder;
(ii) all disclosures to employees and all government filings and other reports relating to each such MSP Plan and required (under ERISA, the Code, other applicable law, including federal and state securities laws, and all regulations thereunder) to have been made or filed on or before the Effective Time Closing Date have been or will be duly and timely made or filed by that date;
(iii) each there is no litigation, disputed claim (other than routine claims for benefits), governmental proceeding, audit, inquiry or investigation pending or, to the knowledge of the MSP Plans which is intended Seller, threatened with respect to be "qualified" within the meaning any such Plan, its related assets or trusts, or any fiduciary, administrator or sponsor of Section 401(a) of the Code has been determined by the IRS to be so qualified and MSP has obtained favorable determination letters from the IRS to such effectPlan;
(iv) no such determination letter Seller has been revoked by the IRS, nor has the IRS given any written notice delivered to MSP that it intends to revoke any such determination letter;
(v) no reportable event within the meaning of Section 4043 of ERISA, or non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect to the MSP Plans and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof;
(vi) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) has been waived or excused or has been paid or is owed by any person (including any MSP Plan, any MSP Plan fiduciary, and MSP) with respect to the operations of, or any transactions with respect to, any MSP Plan and no action has been taken, nor has there been any failure to act, that would subject any person or entity to any liability, tax or penalty in connection with any MSP Plan (including any tax or penalty for the failure to withhold income taxes in connection with fringe benefits);
(vii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of the MSP Plans, including litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies, claims with respect to any bond or any fiduciary liability or other similar insurance with regard to actions of any person in connection with the MSP Plans, or notice of any such claim to any insurer under such bond or policy with regard to the MSP Plans; and
(viii) no fiduciary of any of the MSP Plans has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration of or investment of the assets of any of the MSP Plans.
(e) MSP has provided or will provide promptly to SET copies of all of the written MSP Plans listed on Schedule 3.15(a) and all related current and prior material documentation, including: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the MSP Plans, trustee reports, custodial reports, insurance contracts, fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third-party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan-to-plan transfers of assets and liabilities, any IRS Form 5500, IRS determination letters and/or private letter rulings and advisory opinions from either DOL or PBGC sought by any of the MSP Plans. For purposes of this subsection, "prior" means at least the three plan years preceding the Effective Time.
(f) With respect to each of the MSP Plans, MSP will deliver promptly to SET Purchaser true and complete copies of the participant following: the current Plan document (including a written description of all oral Plans), any amendments thereto, and beneficiary records the related summary plan description, if any; each trust or custodial agreement and each deposit administration, group annuity, insurance or other funding agreement associated with each such Plan; for the MSP Plans last three Plan years, the financial information or reports (including any FASB required reports, if applicable), valuation reports, and/or actuarial reports relating to each such Plan; all Internal Revenue Service and other governmental agency rulings relating thereto, and all applications for such rulings; and all filing and reports (including the Annual Report Form 5500 series, if applicable) filed with any governmental agency at any time during the three year period ending on the Closing Date, along with all schedules and reports filed therewith;
(v) neither any such Plan nor any other person or entity has engaged in a "prohibited transaction" (as defined in ERISA Section 406 or Code Section 4975) with respect to such Plan, for which accurately state no individual or class exemption exists;
(vi) each Plan which is a "group health plan" (as defined in Code Section 5000(b)(1)) has complied and will comply at all times (whether before, on, or after the history of each participant and beneficiary Closing Date) in connection all respects with the MSP Plans applicable requirements of ERISA Sections 601 and which accurately state 602, Code Section 162(k) (through December 31, 1988) and Code Section 4980B (commencing on January 1, 1989); and
(vii) no such Plan is an "employee welfare benefit plan" (as defined in ERISA Section 3(1)) that provides benefits to or on behalf of any person following retirement or other termination of employment (except to the benefits earned and/or owed to each person under the MSP Plansextent required by Code Section 4980B).
(gd) Except as set forth in Schedule 3.15(g2.12, with respect to each Plan which is an "employee pension benefit plan" (as defined in ERISA Section 3(2)):
(i) no event has occurred and no condition exists relating to any such Plan that would subject Seller or Purchaser to any tax under Code Sections 4972 or 4979, or to any liability under ERISA Section 502;
(ii) to the extent applicable, no such Plan has experienced any "accumulated funding deficiency" (as defined in Code Section 412), MSP whether or not waived, at any time;
(iii) no such Plan is not subject to Title IV of ERISA; and
(iv) no such Plan is a contributing employer to any "multiemployer plan.
" (h) Except as set forth defined in Schedule 3.15(hERISA Section 3(37), none of the MSP Plans provide, or have an obligation or commitment to provide, health benefits to any current or former employee of MSP, or any dependent of any such employee, beyond such employee's retirement or other termination of service, other than coverage mandated by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA").
(iv) No amount payable under with respect to each Plan which is a "multiemployer plan" (as defined in ERISA Section 3(37)), Seller has no knowledge such that the MSP Plans is likely foregoing representations would not also be true with respect to fail such multiemployer plan; and Seller has delivered to be deductible Purchaser data which accurately discloses its total contribution base units for federal income tax purposes by virtue of Section 280G each of the Codelast eight consecutive Plan years.
(j) Except as sent forth in Schedule 3.15(j), the MSP Plans that are subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act ("HIPAA") have been maintained in compliance with COBRA and HIPAA requirements, including all notice and certification requirements.
Appears in 1 contract
ERISA; Benefit Plans. (a) Schedule 3.15(a) 2.12 contains a true and complete list of all employment-related plans, including but not limited to, employment or consulting agreements, collective bargaining and supplemental agreements, pension, profit sharing, stock bonus, defined contribution, supplemental executive retirement, incentive, bonus, deferred compensation, retirement, stock option, stock purchase, severance, medical and hospitalization, disability, life insurance, long term care, vacation, salary continuation, sick pay, welfare, fringe benefit and other employee benefit plans, contracts, programs, policies and arrangements, whether written or oral, which MSP any Company maintains or has have maintained, or under which MSP any Company has or had any obligations with respect to any employee of MSPemployee, now or at any time during the five year period ending on years immediately prior to the Closing Date date of this Agreement (the "MSP Plans").
(b) Except as set forth in Schedule 3.15(b), 2.12: (i) MSP no Company has no any unfunded liabilities in connection with any of the MSP Plans; (ii) all contributions, premium payments and other payments due from MSP any Company to or under such MSP Plans have been paid in a timely manner; and (iii) all additional contributions, premium payments and other payments due on or before the Effective Time Closing Date shall have been paidpaid by that date.
(c) Except as set forth in Schedule 3.15(c), MSP has not made any commitments or taken any actions to adopt or establish any additional MSP Plans or to materially increase the benefits under any of the MSP Plans.
(d) Except as set forth in Schedule 3.15(d)2.12, with respect to each of the MSP Plans:
(i) each MSP Plan has been established, maintained, funded and operated and administered, administered in all material respects, respects in substantial compliance accordance with its governing documents, and all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (including compliance with ERISA Section 404(c) and related regulations regarding participant self-directed investments), the Internal Revenue Code of 1986, as amended (the "Code"), other applicable domestic or foreign law, and all regulations thereunder;
(ii) all disclosures to employees and all government filings and other reports relating to each such MSP Plan and required (under ERISA, the Code, other applicable domestic or foreign law, including federal federal, state and state foreign securities laws, and all regulations thereunder) to have been made or filed on or before the Effective Time Closing Date have been or will be duly and timely made or filed by that date;
(iii) each there is no litigation, disputed claim (other than routine claims for benefits), governmental proceeding, audit, inquiry or investigation pending or, to the Sellers' knowledge, threatened with respect to any such Plan, its related assets or trusts, or any fiduciary, administrator or sponsor of the MSP Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the IRS to be so qualified and MSP has obtained favorable determination letters from the IRS to such effectPlan;
(iv) no such determination letter has been revoked by the IRS, nor has the IRS given any written notice to MSP that it intends to revoke any such determination letter;
(v) no reportable event within the meaning of Section 4043 of ERISA, or non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect Sellers have delivered to the MSP Plans and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof;
(vi) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) has been waived or excused or has been paid or is owed by any person (including any MSP Plan, any MSP Plan fiduciary, and MSP) with respect to the operations of, or any transactions with respect to, any MSP Plan and no action has been taken, nor has there been any failure to act, that would subject any person or entity to any liability, tax or penalty in connection with any MSP Plan (including any tax or penalty for the failure to withhold income taxes in connection with fringe benefits);
(vii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of the MSP Plans, including litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies, claims with respect to any bond or any fiduciary liability or other similar insurance with regard to actions of any person in connection with the MSP Plans, or notice of any such claim to any insurer under such bond or policy with regard to the MSP Plans; and
(viii) no fiduciary of any of the MSP Plans has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration of or investment of the assets of any of the MSP Plans.
(e) MSP has provided or will provide promptly to SET copies of all of the written MSP Plans listed on Schedule 3.15(a) and all related current and prior material documentation, including: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the MSP Plans, trustee reports, custodial reports, insurance contracts, fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third-party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan-to-plan transfers of assets and liabilities, any IRS Form 5500, IRS determination letters and/or private letter rulings and advisory opinions from either DOL or PBGC sought by any of the MSP Plans. For purposes of this subsection, "prior" means at least the three plan years preceding the Effective Time.
(f) With respect to each of the MSP Plans, MSP will deliver promptly to SET Purchaser true and complete copies of the participant following: (A) the current Plan document (including a written description of all oral Plans); (B) any amendments thereto, and beneficiary records the related summary plan description, if any; (C) each trust or custodial agreement and each deposit administration, group annuity, insurance or other funding agreement associated with each such Plan; (D) for the MSP Plans last three Plan years, the financial information or reports (including any FASB required reports, if applicable), valuation reports, and/or actuarial reports relating to each such Plan; (E) all Internal Revenue Service and other governmental agency rulings relating thereto, and all applications for such rulings; (F) and all filing and reports (including the Annual Report Form 5500 series, if applicable) filed with any governmental agency at any time during the three year period ending on the Closing Date, along with all schedules and reports filed therewith;
(v) neither any such Plan nor any other person or entity has engaged in a "prohibited transaction" (as defined in ERISA Section 406 or Code Section 4975) or comparable foreign statutes or regulations with respect to such Plan, for which accurately state no individual or class exemption exists;
(vi) each Plan which is a "group health plan" (as defined in Code Section 5000(b)(1)) has complied and will comply at all times (whether before or on the history of each participant and beneficiary Closing Date) in connection all respects with the MSP Plans applicable requirements of ERISA, the Code, and which accurately any applicable state law, including ERISA Sections 601 through 734, Code Sections 498B and 9801 through 9833 and all related regulations thereunder; and
(vii) no such Plan is an "employee welfare benefit plan" (as defined in ERISA Section 3(1)) that provides benefits to or on behalf of any person following retirement or other termination of employment (except to the benefits earned and/or owed to each person under the MSP Plansextent required by Code Section 4980B).
(gd) Except as set forth in Schedule 3.15(g2.12, with respect to each Plan which is an "employee pension benefit plan" (as defined in ERISA Section 3(2)):
(i) no event has occurred and no condition exists relating to any such Plan that would subject any Company or the Purchaser to any tax under Code Sections 4972 or 4979, or to any liability under ERISA Section 502;
(ii) to the extent applicable, no such Plan has experienced any "accumulated funding deficiency" (as defined in Code Section 412), MSP whether or not waived, at any time;
(iii) no such Plan is not subject to Title IV of ERISA; and 25
(iv) no such Plan is a contributing employer to any "multiemployer plan" (as defined in ERISA Section 3(37)).
(he) Except as set forth in Schedule 3.15(h), none The consummation of the MSP Plans provide, or have an obligation or commitment to provide, health benefits to transactions contemplated by this Agreement will not:
(i) entitle any current or former employee of MSPany Company to severance pay, unemployment compensation or similar payment;
(ii) accelerate the time of any payment or vesting or increase the amount of any compensation due to, or in respect of, any dependent current or former employee of any such employee, beyond such employee's retirement Company; or
(iii) constitute or other termination involve the breach of service, other than coverage mandated by fiduciary responsibility within the meaning of ERISA Section 502(l) or otherwise violate Part 6 4 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA")ERISA.
(i) No amount payable under the MSP Plans is likely to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(j) Except as sent forth in Schedule 3.15(j), the MSP Plans that are subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act ("HIPAA") have been maintained in compliance with COBRA and HIPAA requirements, including all notice and certification requirements.
Appears in 1 contract
ERISA; Benefit Plans. (a) Schedule 3.15(a4.15(a) contains a true and complete list of all employment-related plans, including but not limited to, employment or consulting agreements, collective bargaining and supplemental agreements, pension, profit sharing, stock bonus, defined contribution, supplemental executive retirement, incentive, bonus, deferred compensation, retirement, stock option, stock purchase, severance, medical and hospitalization, disability, life insurance, long term care, vacation, salary continuation, sick pay, welfare, fringe benefit and other employee benefit plans, contracts, programs, policies and arrangements, whether written or oral, which MSP SET or any entity that, together with SET, would be treated as a single employer under Code Section 414(b), (c) or (m) ("SET ERISA Affiliate") maintains or has maintained, or under which MSP SET has or had any obligations with respect to any employee of MSPSET, now or at any time during the five year period ending on the Closing Date (the "MSP SET Plans").
(b) Except as set forth in Schedule 3.15(b4.15(b), (i) MSP SET has no unfunded liabilities in connection with any of the MSP SET Plans; (ii) all contributions, premium payments and other payments due from MSP SET to or under such MSP SET Plans have been paid in a timely manner; and (iii) all additional contributions, premium payments and other payments due on or before the Effective Time have been paid.
(c) Except as set forth in Schedule 3.15(c4.15(c), MSP has not none of SET nor any SET ERISA Affiliates have made any commitments or taken any actions to adopt or establish any additional MSP SET Plans or to materially increase the benefits under any of the MSP SET Plans.
(d) Except as set forth in Schedule 3.15(d4.15(d), with respect to each of the MSP SET Plans:
(i) each MSP SET Plan has been established, maintained, funded and operated and administered, in all material respects, in substantial compliance with its governing documents, and all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), other applicable law, and all regulations thereunder;
(ii) all disclosures to employees and all government filings and other reports relating to each such MSP SET Plan and required (under ERISA, the Code, other applicable law, including federal and state securities laws, and all regulations thereunder) to have been made or filed on or before the Effective Time have been or will be duly and timely made or filed by that date;
(iii) each of the MSP SET Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the IRS to be so qualified and MSP has SET or the SET ERISA Affiliate sponsoring such SET Plans have obtained favorable determination letters from the IRS to such effect;
(iv) no such determination letter has been revoked by the IRS, nor has the IRS given any written notice to MSP SET or any SET ERISA Affiliate that it intends to revoke any such determination letter;
(v) no reportable event within the meaning of Section 4043 of ERISA, or non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect to the MSP SET Plans and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof;
(vi) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) has been waived or excused or has been paid or is owed by any person (including any MSP SET Plan, any MSP SET Plan fiduciary, SET and MSPany SET ERISA Affiliate) with respect to the operations of, or any transactions with respect to, any MSP SET Plan and no action has been taken, nor has there been any failure to act, that would subject any person or entity to any liability, tax or penalty in connection with any MSP SET Plan (including but not limited to any tax or penalty for the failure to withhold income taxes in connection with fringe benefits);
(vii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of the MSP SET Plans, including litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies, claims with respect to any bond or any fiduciary liability or other similar insurance with regard to actions of any person in connection with the MSP SET Plans, or notice of any such claim to any insurer under such bond or policy with regard to the MSP SET Plans; and
(viii) no fiduciary of any of the MSP SET Plans has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration of or investment of the assets of any of the MSP SET Plans.
(e) MSP SET has provided or will provide promptly to SET the Owners copies of all of the written MSP SET Plans listed on Schedule 3.15(a4.15(a) and all related current and prior material documentation, including: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the MSP SET Plans, trustee reports, custodial reports, insurance contracts, fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third-party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan-to-plan transfers of assets and liabilities, any IRS Form 5500, IRS determination letters and/or private letter rulings and advisory opinions from either DOL or PBGC sought by any of the MSP SET Plans. For purposes of this subsection, "prior" means at least the three plan years preceding the Effective Time.
(f) With respect to each of the MSP SET Plans, MSP SET will deliver promptly to SET the Owners true and complete copies of the participant and beneficiary records for the MSP SET Plans which accurately state the history of each participant and beneficiary in connection with the MSP SET Plans and which accurately state the benefits earned and/or owed to each person under the MSP SET Plans.
(g) Except as set forth in Schedule 3.15(g4.15(g), MSP is not a neither SET nor any SET ERISA Affiliates are contributing employer employers to any multiemployer plan.
(h) Except as set forth in Schedule 3.15(h4.15(h), none of the MSP SET Plans provide, or have an obligation or commitment to provide, health benefits to any current or former employee of MSPSET, or any dependent of any such employee, beyond such employee's retirement or other termination of service, other than coverage mandated by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA").
(i) No amount payable under the MSP SET Plans is likely to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(j) Except as sent forth in Schedule 3.15(j4.15(j), the MSP SET Plans that are subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act ("HIPAA") HIPAA have been maintained in compliance with COBRA and HIPAA requirements, including all notice and certification requirements.
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ERISA; Benefit Plans. (a) Schedule 3.15(a) 2.12 contains a true and complete list of all employment-related plans, including but not limited to, employment or consulting agreements, collective bargaining and supplemental agreements, pension, profit sharing, stock bonus, defined contribution, supplemental executive retirement, incentive, bonus, deferred compensation, retirement, stock option, stock purchase, severance, medical and hospitalization, disability, life insurance, long term care, vacation, salary continuation, sick pay, welfare, fringe benefit and other employee benefit plans, contracts, programs, policies and arrangements, whether written or oral, which MSP maintains Sellers maintain or has have maintained, or under which MSP has Sellers have or had any obligations with respect to any employee of MSPemployee, now or at any time during the five year period ending on the Closing Date (the "MSP Plans").
(b) Except as set forth in Schedule 3.15(b)2.12, (i1) MSP has Sellers have no unfunded liabilities in connection with any of the MSP Plans; (ii2) all contributions, premium payments and other payments due from MSP Sellers to or under such MSP Plans have been paid in a timely manner; and (iii3) all additional contributions, premium payments and other payments due on or before the Effective Time Closing Date shall have been paidpaid by that date.
(c) Except as set forth in Schedule 3.15(c), MSP has not made any commitments or taken any actions to adopt or establish any additional MSP Plans or to materially increase the benefits under any of the MSP Plans.
(d) Except as set forth in Schedule 3.15(d)2.12, with respect to each of the MSP Plans:
(i) each MSP Plan has been established, maintained, funded and operated and administered, administered in all material respects, respects in substantial compliance accordance with its governing documents, and all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), other applicable law, and all regulations thereunder;
(ii) all disclosures to employees and all government filings and other reports relating to each such MSP Plan and required (under ERISA, the Code, other applicable law, including federal and state securities laws, and all regulations thereunder) to have been made or filed on or before the Effective Time Closing Date have been or will be duly and timely made or filed by that date;
(iii) each there is no litigation, disputed claim (other than routine claims for benefits), governmental proceeding, audit, inquiry or investigation pending or, to the knowledge of the MSP Plans which is intended Sellers, threatened with respect to be "qualified" within the meaning any such Plan, its related assets or trusts, or any fiduciary, administrator or sponsor of Section 401(a) of the Code has been determined by the IRS to be so qualified and MSP has obtained favorable determination letters from the IRS to such effectPlan;
(iv) no such determination letter has been revoked by the IRS, nor has the IRS given any written notice Sellers have delivered to MSP that it intends to revoke any such determination letter;
(v) no reportable event within the meaning of Section 4043 of ERISA, or non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect to the MSP Plans and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof;
(vi) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) has been waived or excused or has been paid or is owed by any person (including any MSP Plan, any MSP Plan fiduciary, and MSP) with respect to the operations of, or any transactions with respect to, any MSP Plan and no action has been taken, nor has there been any failure to act, that would subject any person or entity to any liability, tax or penalty in connection with any MSP Plan (including any tax or penalty for the failure to withhold income taxes in connection with fringe benefits);
(vii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of the MSP Plans, including litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies, claims with respect to any bond or any fiduciary liability or other similar insurance with regard to actions of any person in connection with the MSP Plans, or notice of any such claim to any insurer under such bond or policy with regard to the MSP Plans; and
(viii) no fiduciary of any of the MSP Plans has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration of or investment of the assets of any of the MSP Plans.
(e) MSP has provided or will provide promptly to SET copies of all of the written MSP Plans listed on Schedule 3.15(a) and all related current and prior material documentation, including: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the MSP Plans, trustee reports, custodial reports, insurance contracts, fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third-party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan-to-plan transfers of assets and liabilities, any IRS Form 5500, IRS determination letters and/or private letter rulings and advisory opinions from either DOL or PBGC sought by any of the MSP Plans. For purposes of this subsection, "prior" means at least the three plan years preceding the Effective Time.
(f) With respect to each of the MSP Plans, MSP will deliver promptly to SET Purchaser true and complete copies of the participant following: the current Plan document (including a written description of all oral Plans), any amendments thereto, and beneficiary records the related summary plan description, if any; each trust or custodial agreement and each deposit administration, group annuity, insurance or other funding agreement associated with each such Plan; for the MSP Plans last three Plan years, the financial information or reports (including any FASB required reports, if applicable), valuation reports, and/or actuarial reports relating to each such Plan; all Internal Revenue Service and other governmental agency rulings relating thereto, and all applications for such rulings; and all filing and reports (including the Annual Report Form 5500 series, if applicable) filed with any governmental agency at any time during the three year period ending on the Closing Date, along with all schedules and reports filed therewith;
(v) neither any such Plan nor any other person or entity has engaged in a "prohibited transaction" (as defined in ERISA Section 406 or Code Section 4975) with respect to such Plan, for which accurately state no individual or class exemption exists;
(vi) each Plan which is a "group health plan" (as defined in Code Section 5000(b)(1))has complied and will comply at all times (whether before, on, or after the history of each participant and beneficiary Closing Date) in connection all respects with the MSP Plans applicable requirements of ERISA Sections 601 and which accurately state 602, Code Section 162(k) (through December 31, 1988) and Code Section 4980B (commencing on January 1, 1989); and
(vii) no such Plan is an "employee welfare benefit plan" (as defined in ERISA Section 3(1)) that provides benefits to or on behalf of any person following retirement or other termination of employment (except to the benefits earned and/or owed to each person under the MSP Plansextent required by Code Section 4980B).
(gd) Except as set forth in Schedule 3.15(g2.12, with respect to each Plan which is an "employee pension benefit plan" (as defined in ERISA Section 3(2), MSP is not a contributing employer to any multiemployer plan.
(h) Except as set forth in Schedule 3.15(h), none of the MSP Plans provide, or have an obligation or commitment to provide, health benefits to any current or former employee of MSP, or any dependent of any such employee, beyond such employee's retirement or other termination of service, other than coverage mandated by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA").):
(i) No amount payable no event has occurred and no condition exists relating to any such Plan that would subject Sellers or Purchaser to any tax under the MSP Plans is likely Code Sections 4972 or 4979, or to fail to be deductible for federal income tax purposes by virtue of any liability under ERISA Section 280G of the Code.502;
(jii) Except to the extent applicable, no such Plan has experienced any "accumulated funding deficiency" (as sent forth defined in Schedule 3.15(jCode Section 412), the MSP Plans that are whether or not waived, at any time;
(iii) no such Plan is subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act ("HIPAA") have been maintained in compliance with COBRA and HIPAA requirements, including all notice and certification requirements.Title IV of ERISA; and
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