ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan. (b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan. (c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA). (d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. (e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code). (f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law). (g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions. (h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan. (i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law. (j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course. (k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary. (l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (Penney J C Co Inc), Merger Agreement (Genovese Drug Stores Inc), Merger Agreement (Penney J C Co Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employeesParticipant. Each Company Benefit Plan (other than Company Multiemployer Pension Plans (as defined in Section 3.11(c)), officers or directors and, to the knowledge of the Company, each Company or Multiemployer Pension Plan has been administered in material compliance with its terms and applicable Law, and the terms of any Company Subsidiaryapplicable collective bargaining agreements. The Company has made available delivered to Parent true, complete and correct copies of (i) each Company Benefit Plan required to be listed on Section 3.11(a) of the Company Disclosure Letter and each Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlans or Company Benefit Agreements, a description written descriptions thereof), (ii) the two most recent annual report on Form 5500 reports required to be filed, or such similar reports, statements, information returns or material correspondence filed with the Internal Revenue Service or delivered to any Governmental Entity, with respect to each Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description prepared for each Company Benefit Plan for which such summary plan description is required and Plan, (iv) each trust agreement and group annuity contract and other documents relating to the funding or payment of benefits under any Company Benefit Plan.
, (bv) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination or qualification letter or application therefor in issued by any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date Governmental Entity for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during intended to qualify for favorable tax treatment, as well as a true, correct and complete copy of each pending application for a determination letter, if applicable, and (vi) the last five yearstwo most recent actuarial valuations for each Company Benefit Plan. Neither the All Participant data necessary to administer each Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205Benefit Plan, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to other than any Company Benefit Plan that is an employee welfare benefit plana Company Multiemployer Pension Plan, (i) no such and Company Benefit Plan Agreement is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) the possession of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and is in a form that is sufficient for the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None proper administration of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the and Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed Agreements in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated accordance with their terms and all applicable Laws and such data is complete and correct in all material respects in accordance with its terms and the requirements of all applicable lawrespects.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp), Merger Agreement (Boyd Gaming Corp)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains Each collective bargaining agreement of Parent and each bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock appreciation, restricted stock, stock option, phantom stock, performance, retirement, thrift, savings, stock bonus, cafeteria, paid time off, perquisite, fringe benefit, vacation, severance, disability, death benefit, hospitalization, medical or other welfare benefit or other plan, program, arrangement or understanding of Parent, whether oral or written, formal or informal, funded or unfunded (whether or not legally binding) maintained, contributed to or required to be maintained or contributed to by Parent or any Parent Subsidiary or any other Commonly Controlled Entity, whether or not providing material benefits to any current or former employee, officer, director or independent contractor of Parent or any Parent Subsidiary (each, a list and brief description of all "employee pension benefit plans" “Parent Plan Participant”) (collectively, “Parent Benefit Plans”), other than Parent Multiemployer Pension Plans (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"4.13(c), "employee welfare benefit plans" (as defined and, to the knowledge of Parent, each Parent Multiemployer Pension Plan has been administered in Section 3(1) of ERISA) material compliance with its terms and all other Company Benefit Plans maintainedapplicable Law, or contributed to, by and the Company or any Company Subsidiary for the benefit terms of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Planapplicable collective bargaining agreements.
(b) All Company Parent Benefit Plans (other than Parent Multiemployer Pension Plans Plans) which are intended to be tax- qualified under Section 401(a) of the Code, have been the subject of a determination letters letter from the Internal Revenue Service to the effect that the form of each such Company Pension Plans are Parent Benefit Plan is qualified and exempt from Federal income taxes Taxes under Sections 401(a) and 501(a), respectively, of the Code, and satisfy the requirements for statutory changes required by the legislation commonly known as “GUST” and each Parent Benefit Plan has been amended to comply with statutory changes by the legislation commonly known as “EGTRRA,” and no such determination letter has been revoked nor, to the knowledge of the CompanyParent, has revocation been threatened, nor has any such Company Pension Parent Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge or require security under Section 307 of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planERISA.
(c) Except as previously disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, during the past three (3) years (i) neither Parent nor any Company SubsidiaryCommonly Controlled Entity of Parent has maintained, contributed to or been obligated to maintain or contribute to, or has any actual or contingent liability under, any officer of the Company or any of its Company Subsidiary or any of the Company Parent Benefit Plans which are Plan that is subject to Title IV of ERISA, including other than any Parent Benefit Plan that is a “multiemployer plan” within the Company meaning of Section 4001(a)(3) of ERISA (a “Parent Multiemployer Pension PlansPlan”), any trusts created thereunder or any trustee or administrator thereof, has engaged in a "(ii) there have been no non-exempt “prohibited transaction" transactions” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any Parent Benefit Plan that is subject to ERISA or any other breach of fiduciary responsibility that could reasonably be expected to subject the CompanyParent, any Company Parent Subsidiary or any officer of the Company Parent or any Company Parent Subsidiary or any of the Parent Benefit Plans which are subject to ERISA, or, to the knowledge of Parent, any trusts created thereunder or any trustee or administrator thereof to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1) of ERISA or to any other material liability for breach of fiduciary duty under ERISA or any other applicable Law, (iii) no Parent Benefit Plan which is subject to Title IV of ERISA. None of such Company Benefit Plans and trusts , or any trust related thereto, has been terminated, or (iv) (A) neither Parent nor any Parent Subsidiary has there been incurred any "reportable event" (as liability that term is defined in Section 4043 of ERISA) remains unsatisfied with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan Parent Multiemployer Pension Plan, (within B) no such liability has been asserted, (C) there are no events or circumstances known by Parent that would result in any such complete withdrawal or partial withdrawal and (D) neither Parent nor any Commonly Controlled Entity of Parent is bound by any Contract or has any liabilities described in ERISA Section 4204; provided, however, that the meaning of Section 4001(a)(3representation contained in clause (i) through (iv) of ERISA)this Section 4.13(c) shall only apply to items which Parent reasonably believes would result in a Parent Material Adverse Effect.
(d) With respect to any Company Parent Benefit Plan that is an employee a “welfare benefit plan” (as such term is defined in Section 3(1) of ERISA), whether or not subject to ERISA, (i) no such Company Parent Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) each such Company Parent Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), complies complies, in all material respects, with the applicable requirements of Section 4980B(f) of the Code and or any similar state statute, (iii) no such Parent Benefit Plan provides benefits after termination of employment, except where the cost thereof is borne entirely by the former employee (or his or her eligible dependents or beneficiaries) or as required by Section 4980B(f) of the Code or any similar state statute, (iv) each such Company Parent Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company Parent and the Company Subsidiary Parent Subsidiaries (except for expenses related to termination of any such plan and paying any final claims related thereto) on or at any time after the Effective TimeTime and (v) Parent has disclosed to the Company in the Parent Disclosure Letter whether each welfare plan is self-insured or insured through third party coverage.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is could not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Parent Material Adverse Effect, since December 31, 2004, neither Parent nor any Parent Subsidiary has received notice of, and, to the knowledge of Parent, there are no (i) material pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Parent Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Parent Benefit Plan (other than a Parent Benefit Plan which is a Parent Multiemployer Pension Plan), or (ii) pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Parent Benefit Plan (other than a Parent Benefit Plan which is a Parent Multiemployer Benefit Plan). Except as could not reasonably be expected to have a Parent Material Adverse Effect, all contributions, premiums and benefit payments under or in connection with the Parent Benefit Plans that are required to have been made by Parent or any Parent Subsidiary have been timely made, accrued or reserved for in all material respects.
(f) Neither Parent nor any Parent Subsidiary has any material liability or obligations, including under or on account of a Parent Benefit Plan, arising out of the hiring of persons to provide services to Parent or any Parent Subsidiary and treating such persons as consultants or independent contractors and not as employees of Parent or any Parent Subsidiary.
(g) Parent has no legally binding plan or commitment to create any additional Parent Benefit Plan or modify or change any existing Parent Benefit Plan that would be reasonably expected to result in material liabilities to Parent, except as may be required by applicable Law. To the extent that any such plan or commitment exists, whether or not expected to result in material liability to Parent, Parent has provided a copy of such plan or commitment to the Company.
(h) No employee, director or consultant is or will become entitled to death or medical post-employment benefits by reason of service to Parent or the Parent Subsidiaries, other than coverage mandated by section 4980B of the Code or similar state law, where the payment of any such benefits would have a Parent Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/), Merger Agreement (Reliance Steel & Aluminum Co)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" Company Benefit Plans. Each Company Benefit Plan (other than Company Multiemployer Pension Plans (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"3.11(c)) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined has been administered in Section 3(1) of ERISA) material compliance with its terms, applicable Law and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit terms of any current or former employees, officers or directors of the Company or any Company Subsidiaryapplicable collective bargaining agreements. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit PlanPlans, a description written descriptions thereof), (ii) the most recent annual report on Form 5500 required to be filed, or such similar report, statement, information returns or material correspondence filed with or delivered to any Governmental Entity during the Internal Revenue Service past year, with respect to each Company Benefit Plan (if any such report was requiredother than Company Multiemployer Pension Plans) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments, (iii) the most recent summary plan description prepared for each Company Benefit Plan for which such summary plan description is required and (other than Company Multiemployer Pension Plans), (iv) each currently effective trust agreement and group annuity contract and other documents relating to any Company Benefit Plan.
(b) All Company Pension Plans intended to be tax- qualified have been the subject funding or payment of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes benefits under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during (other than Company Multiemployer Pension Plans), (v) the last five years. Neither most recent determination or qualification letter issued by any Governmental Entity for each Company Benefit Plan (other than Company Multiemployer Pension Plans) intended to qualify for favorable tax treatment, as well as a true, correct and complete copy of each pending application for a determination letter, if applicable, and (vi) the most recent actuarial valuation for each Company nor any Benefit Plan (other than Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, Multiemployer Pension Plans) subject to Title IV of ERISA) since the effective date of such Sections 4203 and 4205 with respect . All Participant data necessary to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to administer each Company Benefit Plan, other than any Company Benefit Plan that is an employee welfare benefit plana Company Multiemployer Pension Plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director possession of the Company or any its service providers and is in a form that is sufficient for the proper administration of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) in accordance with their terms and all applicable Laws and such data is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefittrue, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated complete and correct in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date respects. For purposes of this Agreement, the term “Company is not aware of Pension Plan” shall mean any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary coursePlan which is subject to Title IV of ERISA.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.12 of the Company Disclosure Letter Schedule contains a list of each Benefit Plan and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryAgreement. The Company has made available to Parent true, complete and correct copies of (ia) each Company material Benefit Plan and Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Benefit Agreement, a description thereof)) and related documents including trust documents, summary plan descriptions, group annuity contracts, plan amendments, insurance policies or contracts, employee booklets, administrative services agreements, standard COBRA notices and forms, registration statements and prospectuses, (iib) the three most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiic) the compliance and non-discrimination tests for the last three years, and (d) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanInternal Revenue Service determination or opinion letter.
(b) Each Benefit Plan and Benefit Agreement has been administered in all material respects in accordance with its terms in all material respects with the applicable provisions of ERISA and the Code, and all other applicable laws, including laws of foreign jurisdictions. The Company and each Commonly Controlled Entity have performed in all material respects all obligations required to be performed by them under and are not in any material respect in default under or violation of and have no knowledge of any material default or violation by any other party with respect to any Benefit Plan or Benefit Agreement. All Company Pension Benefit Plans intended to be tax- tax-qualified under Code Section 401(a) ("Pension Plans") have been the subject of either received a favorable determination letters or opinion letter from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or the remedial amendment period under Section 401(b) of the Code has not expired, and no such determination or opinion letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended event occurred since the date of its most recent determination letter or opinion letter, application therefor in any respect or Pension Plan's adoption that would adversely affect its qualification or materially increase its costs andcosts. All Benefit Plans required to have been approved by any foreign Governmental Entity have been so approved; no such approval has been revoked (or, to the knowledge of the Company, nothing has revocation been threatened) nor has any event occurred since the date of the most recent approval or application therefor relating to any such Benefit Plan that would materially affect any such approval relating thereto or materially increase the costs relating thereto. The Company has delivered to Parent a true and complete copy of the most recent determination letter that could reasonably be expected received with respect to affect the qualified status each Pension Plan, as well as a true and complete copy of such planeach pending application for a determination letter, if any.
(c) Except as disclosed in No Pension Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Pension Plan") or is subject to the provisions of Title IV of ERISA, and neither the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) nor any Commonly Controlled Entity could have any liability under Title IV of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiaryof its subsidiaries, any officer of the Company or any of its Company Subsidiary subsidiaries or any of the Company Benefit Plans which are subject to ERISA, including the Company any Pension PlansPlan, any trusts created thereunder or to the knowledge of the Company any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary of its subsidiaries or any officer of the Company or any Company Subsidiary of its subsidiaries to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been . All contributions and premiums and benefit payments required to be made under the terms of any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during as of the last five years. Neither date hereof have been timely made or have been reflected on the most recent consolidated balance sheet included in the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)SEC Documents.
(d) With All reports, returns and similar documents with respect to all Benefit Plans required to be filed with any Governmental Entity or distributed to any Benefit Plan participant have been duly and timely filed or distributed except for such failures that do not result in any material liability. None of the Company or any of its subsidiaries has received notice of, and to the knowledge of the Company, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that is an employee welfare benefit plancould give rise to any material liability, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) and, to the knowledge of the Code)Company, there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(iie) The Company and its subsidiaries, with respect to each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies comply in all material respects with the applicable requirements of (i) Section 4980B(f) of the Code or any state law governing health care coverage extension or continuation; (ii) the Health Insurance Portability and Accountability Act of 1996; and (iii) each such the Cancer Rights Act of 1998. Neither the Company nor any of its subsidiaries has any obligations for retiree health, life insurance or other similar welfare benefits under any Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeBenefit Agreement, except as required by statute.
(ef) Other than payments that may be made to Except as expressly contemplated by this Agreement or as set forth in any Employment Agreement, none of the persons listed in execution and delivery of this Agreement, the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result consummation of the Merger or any other Transaction transaction contemplated by this Agreement and the Stockholder Agreement (including as a result of any termination of employment following the Effective Time) will (x) entitle any employee, officer officer, consultant or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, subsidiaries to severance or termination agreementpay, other compensation arrangement (y) accelerate the time of payment or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" vesting or trigger any payment or funding (as defined in Section 280G(b)(1through a grantor trust or otherwise) of compensation or benefits under, increase the Code).
(f) None amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or Benefit Agreements or (iiz) promises result in any breach or provides retiree medical violation of, or life insurance benefits to a default under, any person (other than as required by law)of the Benefit Plans or Benefit Agreements.
(g) None of the The Company Benefit Plans provides for payment of a benefitand its subsidiaries are in compliance in all material respects with all Federal, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither state and local requirements regarding employment. Neither the Company nor any Company Subsidiary has an obligation of its subsidiaries is a party to adopt any new Company Benefit Plan or, except as required collective bargaining or other labor union contract applicable to persons employed by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as or any of its subsidiaries and no collective bargaining agreement is being negotiated by the date Company or any of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) subsidiaries. As of the date of this Agreement, the Company there is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementno labor dispute, and no employees of strike or work stoppage against the Company or any Company Subsidiary are represented by any labor organization. To of its subsidiaries pending or, to the knowledge of the Company, no threatened which has had, or would reasonably be expected to have, a Material Adverse Effect on the Company. As of the date of this Agreement, to the knowledge of the Company, none of the Company, any of its subsidiaries or any of their respective representatives or employees has committed an unfair labor organization or group practice in connection with the operation of employees the respective businesses of the Company or any Company Subsidiary has made a pending demand for recognition or certificationof its subsidiaries, and there are is no representation charge or certification proceedings complaint against the Company or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with any of its subsidiaries by the National Labor Relations Board or any other labor relations tribunal comparable governmental agency pending or authority. To threatened in writing.
(h) Neither the knowledge Company nor any of its subsidiaries has any material liability or obligations, including under or on account of a Benefit Plan, arising out of the Company, as hiring of the date of this Agreement, there are no organizing activities involving persons to provide services to the Company or any Company Subsidiary pending with any labor organization of its subsidiaries and treating such persons as consultants or group of independent contractors and not as employees of the Company or any Company Subsidiaryof its subsidiaries.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Netratings Inc), Merger Agreement (Netratings Inc), Merger Agreement (Netratings Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Company CDnow Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not subject thereto) (sometimes referred to herein as "Company CDnow Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company CDnow Benefit Plans maintained, or contributed to, by the Company CDnow or any Company CDnow Subsidiary for the benefit of any current or former employees, officers or directors of the Company CDnow or any Company CDnow Subsidiary. The Company CDnow has made available delivered to Parent each of Time Warner and Sony true, complete and correct copies of (i) each Company CDnow Benefit Plan (or, in the case of any unwritten Company CDnow Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company CDnow Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company CDnow Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company CDnow Benefit Plan.
(b) All Company Except as set forth in the CDnow Disclosure Letter, each CDnow Pension Plans Plan that is intended to be tax- qualified have under Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company CDnow Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyCDnow, has revocation been threatened, nor has any such Company CDnow Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no Company No CDnow Pension Plan hadis a defined benefit plan subject to Title IV of ERISA, as and no CDnow Pension Plan is a multiemployer plan within the meaning of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(184001(a)(3) of ERISAERISA (a "Multiemployer Plan"), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the CompanyCDnow, any Company CDnow Subsidiary, any CDnow ERISA Affiliate, any officer of the Company CDnow, any CDnow Subsidiary or any of its Company Subsidiary CDnow ERISA Affiliate or any of the Company CDnow Benefit Plans which are subject to ERISA, including the Company CDnow Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyCDnow, any Company Subsidiary CDnow Subsidiary, any CDnow ERISA Affiliate or any officer of the Company CDnow, any CDnow Subsidiary or any Company Subsidiary CDnow ERISA Affiliate to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company CDnow Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company CDnow Benefit Plan during the last five years. Neither the Company nor None of CDnow, any Company CDnow Subsidiary or any CDnow ERISA Affiliate has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Plan.
(d) With respect to any Company CDnow Benefit Plan that is an employee welfare benefit plan, except as set forth in the CDnow Disclosure Letter, (i) no such Company CDnow Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company CDnow Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company CDnow Benefit Plan (including any such Plan plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company CDnow or any CDnow Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company CDnow Disclosure Letter (the "Primary Company CDnow Executives")) as set forth in the CDnow Disclosure Letter, any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction Transactions by any employee, officer or director of the Company CDnow or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company CDnow Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Each CDnow Benefit Plan has been operated maintained in all material respects in accordance with its terms and the requirements of with all applicable law.
(j) As provisions of the date of this AgreementCode, the Company is not aware of any material claims relating to the Company Benefit Plans ERISA and other than claims for benefits in the ordinary courseapplicable laws.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Time Warner Inc/), Merger Agreement (Time Warner Inc/), Merger Agreement (Cdnow Inc/Pa)
ERISA Compliance; Excess Parachute Payments. (a) The Company Parent Disclosure Letter contains includes a complete list and brief description of all "employee pension benefit plans" (material Parent Benefit Plans and Parent Employment Arrangements as defined in Section 3(2) of the Employee Retirement Income Security Act date of 1974, as amended this Agreement. With respect to each Parent Benefit Plan ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in other than a multiemployer plan within the meaning of Section 3(14001(a)(3) of ERISA) and all other Company Benefit Plans maintainedParent Employment Arrangement, or contributed to, by Parent has delivered to the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company such Parent Benefit Plan or Parent Employment Arrangement (or, in the case of any unwritten Company Benefit Planplan or arrangement, a description thereof), (ii) the most recent annual report on the applicable Form 5500 series filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) ), including all schedules and actuarial reports, if anyattachments thereto, (iii) the most recent summary plan description for each Company Benefit Plan for which such (if a summary plan description is required required) and all summaries of material modifications thereto, (iv) each trust agreement and agreement, group annuity contract or other funding vehicle relating to any Company such Parent Benefit PlanPlan or Parent Employment Arrangement, (v) the most recent actuarial report or valuation relating thereto and (vi) the most recent determination letters issued by the Internal Revenue Service with respect to Parent Benefit Plans that are intended to be Qualified Plans and letters of recognition of exemption with respect to any Parent Benefit Plan or related trust that is intended to meet the requirements of Section 501(c)(9) of the Code.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service With respect to the effect that such Company Pension Parent Benefit Plans are qualified and exempt from Federal income taxes under Sections 401(a) Parent Employment Arrangements, individually and 501(a)in the aggregate, respectively, of the Code, and no such determination letter event has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs occurred and, to the knowledge of Parent, there exists no condition or set of circumstances, in connection with which Parent or any Parent Subsidiary could be subject to any liability that has had or could reasonably be expected to have a Parent Material Adverse Effect (except liability for benefits claims and funding obligations payable in the Companyordinary course) under ERISA, the Code or any other applicable law. For purposes of this Section 4.11(b), the term "Parent Benefit Plan" shall also include any employee benefit plan within the meaning of Section 3(3) of ERISA that, within the last six years, was sponsored or maintained by any entity which would be treated under Section 414 of the Code as a single employer with Parent or any Parent Subsidiary or to which any such entity contributed or was obligated to contribute.
(c) Each Parent Benefit Plan and each Parent Employment Arrangement has been administered in accordance with its terms except for any failures so to administer any Parent Benefit Plan or Parent Employment Arrangement as have not had and could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Parent, all Parent Subsidiaries and all the Parent Benefit Plans and Parent Employment Arrangements are in compliance with the applicable provisions of ERISA, the Code and all other applicable laws and the rules and regulations thereunder and the terms of all applicable collective bargaining agreements, except for any failures to be in such compliance as have not had and could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Except as disclosed in the Parent Disclosure Letter, there are no pending or, to the knowledge of Parent, threatened or anticipated claims under or with respect to any Parent Benefit Plan or Parent Employment Arrangement by or on behalf of any current or former employee, officer or director, or dependent or beneficiary thereof, or otherwise (other than routine claims for benefits).
(d) Except as disclosed in the Parent Disclosure Letter, (i) no current or former employee, officer or director of Parent or any Parent Subsidiary will be entitled to any additional rights or benefits or any acceleration of the time of payment or vesting of any benefits under any Parent Benefit Plan or Parent Employment Arrangement, and no trustee under any "rabbi trust", or similar arrangement maintained in connection with any Parent Benefit Plan or Parent Employment Arrangement will be entitled to any payment, as a result (either alone or upon the occurrence of any additional or further acts or events) of the execution of this Agreement or the consummation, announcement or other actions relating to the Transactions and (ii) no amount payable to any current or former employee, officer or director of Parent or any Parent Subsidiary will fail to be deductible by reason of Section 280G of the Code.
(e) Each Parent Benefit Plan intended to be a Qualified Plan has received a favorable determination letter from the Internal Revenue Service that it is so qualified and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Parent Benefit Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None The aggregate accumulated benefit obligations of each Parent Benefit Plan subject to Title IV of ERISA (as of the Company date of the most recent actuarial valuation prepared for such Parent Benefit Plans Plan) do not exceed the fair market value of the assets of such plan (i) is a "multiemployer plan" within as of the meaning date of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by lawsuch valuation).
(g) None All contributions and other payments required to have been made for any completed historical period by Parent or any Parent Subsidiary to any Parent Benefit Plan or Parent Employment Arrangement (or to any person pursuant to the terms thereof) have been timely made or paid in full, or, to the extent not required to be made or paid for such period, have been reflected in the consolidated financial statements of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the TransactionsParent.
(h) Except as disclosed in the Company Parent Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company no Parent Benefit Plan oris a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA, except as required by lawand none of Parent or any Parent Subsidiary has, at any time during the last six years, contributed to or been obligated to contribute to any such multiemployer plan. For purposes of the representations and warranties made in the last sentence of Section 4.11(c) and in Sections 4.11 (e) and (f), the amendment of an existing Company term "Parent Benefit Plan" shall be deemed to exclude any such multiemployer plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Exchange and Merger (Peco Energy Co), Agreement and Plan of Exchange and Merger (Peco Energy Co)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list of any and brief description of all "Company Benefit Plans, including any and all “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "“Company Pension Plans"”), "“employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans fringe benefit plans or arrangements maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, consultants, officers or directors of the Company or any Company SubsidiarySubsidiary (or the dependents of the foregoing or with respect to which the Company has or may have any material liability). Each Company Benefit Plan has been administered in compliance with its terms and applicable Law, other than instances of noncompliance that, individually and in the aggregate, have not had and could not reasonably be expected to have a Company Material Adverse Effect. All reports and disclosures relating to each Company Benefit Plan required to be filed with or furnished to any Governmental Entity or plan participants or beneficiaries have been filed or furnished in all material respects in accordance with applicable law in a timely manner. All contributions required to be made to each Company Benefit Plan pursuant to the terms of such plan have been timely made. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Each Company Pension Plans Plan intended to be tax- a “qualified have plan” within the meaning of Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor and nothing has any such Company Pension Plan been amended occurred since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in No Company Benefit Plan is a “multiemployer plan” within the Company Disclosure Lettermeaning of Section 3(37) of ERISA (a “Multiemployer Pension Plan”), and no Company Pension Benefit Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code), whether or not waived. .
(d) None of the Company, any Company Subsidiary, any officer of the Company or any of its the Company Subsidiary Subsidiaries or any of the Company Benefit Plans which that are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such , except as could not reasonably be expected to have a Company Material Adverse Effect.
(e) No Company Benefit Plans and trusts Plan or trust has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Pension Plan.
(df) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no each such Company Benefit Plan is unfunded or (x) funded through an insurance contract and is not a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code)) or (y) unfunded, and (ii) each no such Company Benefit Plan that is a "group provides for life, health, medical, disability or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health plan" (continuation coverage provided at no expense to the Company or any Company Subsidiary as such term is defined in required by Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) 4980B of the Code and or Part 6 of Title I of ERISA.
(iiig) each such There are no material actions, claims, liens or investigations existing or pending (other than routine claims for benefits) or, to the knowledge of the Company, threatened with respect to any Company Benefit Plan. No Company Benefit Plan (including is under audit or investigation by any Governmental Entity and no such Plan covering retirees or other former employees) may be amended or terminated without material liability to completed audit, if any, has resulted in the Company and imposition of any Tax during the Company Subsidiary on or at any time after the Effective Timelast 12 months.
(eh) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "“Primary Company Executives"”), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect effect, would not be characterized as constitute an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Ameripath Inc), Merger Agreement (Specialty Laboratories Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Company Columbia House Entities Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974ERISA, as amended ("ERISA")whether or not subject thereto) (sometimes referred to herein as "Company Columbia House Entities Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Columbia House Entities Benefit Plans (other than Columbia House Entities Foreign Plans as defined in Section 4.11(g)) maintained, or contributed to, by the Company any Columbia House Entity or any Company Columbia House Subsidiary for the benefit of any current or former employees, officers or directors of the Company any Columbia House Entity or any Company Columbia House Subsidiary. The Company has made available Columbia House Entities have delivered to Parent CDnow true, complete and correct copies of (i) each Company Columbia House Entities Benefit Plan (or, in the case of any unwritten Company Columbia House Entities Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Columbia House Entities Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Columbia House Entities Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Columbia House Entities Benefit Plan.
(b) All Company Except as set forth in the Columbia House Entities Disclosure Letter, each Columbia House Entities Pension Plans Plan that is intended to be tax- qualified have under Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company Columbia House Entities Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyTime Warner and Sony, has revocation been threatened, nor has any such Company Columbia House Entities Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed set forth in the Company Columbia House Entities Disclosure Letter, no Company Columbia House Entities Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded is a defined benefit liability" (as such term is defined in Section 4001(a)(18) plan subject to Title IV of ERISA), based on actuarial assumptions that have been furnished to Parent. No Columbia House Entities Pension Plan is a Multiemployer Plan. None of the Company Columbia House Entities Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the CompanyColumbia House Entities, any Company Columbia House Subsidiary, any Columbia House ERISA Affiliate, any officer of the Company any Columbia House Entity, any Columbia House Subsidiary or any of its Company Subsidiary Columbia House ERISA Affiliate or any of the Company Columbia House Entities Benefit Plans which are subject to ERISA, including the Company Columbia House Entities Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Companyany Columbia House Entity, any Company Subsidiary Columbia House Subsidiary, any Columbia House ERISA Affiliate or any officer of the Company any Columbia House Entity, any Columbia House Subsidiary or any Company Subsidiary Columbia House ERISA Affiliate to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Columbia House Entities Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Columbia House Entities Benefit Plan during the last five years. Neither None of the Company nor Columbia House Entities, any Company Columbia House Subsidiary or any Columbia House ERISA Affiliate has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Plan.
(d) With respect to any Company Columbia House Entities Benefit Plan that is an employee welfare benefit plan, except as set forth in the Columbia House Entities Disclosure Letter, (i) no such Company Columbia House Entities Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Columbia House Entities Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Columbia House Entities Benefit Plan (including any such Plan plan covering retirees or other former employees) may be amended or terminated without material liability to any of the Company and the Company Columbia House Entities or any Columbia House Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any Any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction Transactions by any employee, officer or director of any of the Company Columbia House Entities or any of its their affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Columbia House Entities Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Each Columbia House Benefit Plan has been operated maintained in all material respects in accordance with its terms and with all applicable provisions of the Code, ERISA and other applicable laws.
(g) Each Columbia House Entities Canadian Plan (as defined below) has been maintained in substantial compliance with its terms and with the requirements of any and all applicable law.
(j) As of the date of this Agreementlaws, the Company is not aware of any statutes, rules, regulations and orders in all material claims relating to the Company Benefit Plans other than claims for benefits respects and has been maintained, where required, in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementgood standing with applicable regulatory authorities, and no employees of neither the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.Columbia House Entities nor any
Appears in 2 contracts
Samples: Merger Agreement (Cdnow Inc/Pa), Merger Agreement (Time Warner Inc/)
ERISA Compliance; Excess Parachute Payments. (a) The Company Aqua Disclosure Letter contains a list of any and brief description of all "Aqua Benefit Plans, including any and all “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "Company “Aqua Pension Plans"”), "“employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans fringe benefit plans or arrangements maintained, or contributed to, by the Company Aqua or any Company Aqua Subsidiary for the benefit of any current or former employees, consultants, officers or directors of the Company Aqua or any Company SubsidiaryAqua Subsidiary (or the dependents of the foregoing or with respect to which Aqua may have any material liability). The Company Each Aqua Benefit Plan has been administered in compliance with its terms and applicable Law, other than instances of noncompliance that, individually and in the aggregate, have not had and could not reasonably be expected to have an Aqua Material Adverse Effect. All reports and disclosures relating to each Aqua Benefit Plan required to be filed with or furnished to any Governmental Entity or plan participants or beneficiaries have been filed or furnished in all material respects in accordance with applicable law in a timely manner. All contributions required to be made to each Aqua Benefit Plan pursuant to the terms of such plan have been timely made. Aqua has made available to Parent the Founder Parties true, complete and correct copies of (i) each Company Aqua Benefit Plan (or, in the case of any unwritten Company Aqua Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Aqua Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Aqua Benefit Plan for which such summary plan description is required and (iv) each trust true agreement and or group annuity contract relating to any Company Aqua Benefit Plan.
(b) All Company Each Aqua Pension Plans Plan intended to be tax- a “qualified have plan” within the meaning of Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company Aqua Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyAqua, has revocation been threatened, nor and nothing has any such Company Pension Plan been amended occurred since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in No Aqua Benefit Plan is a “multiemployer plan” within the Company Disclosure Letter, no Company Pension Plan had, as meaning of the respective last annual valuation date for each such Company Section 3(37) of ERISA (a “Multiemployer Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA”), based on actuarial assumptions that have been furnished and no Aqua Benefit Plan is subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code), whether or not waived. .
(d) None of the CompanyAqua, any Company Aqua Subsidiary, any officer of the Company or any of its Company Subsidiary Aqua or any of the Company Aqua Subsidiaries or any of the Aqua Benefit Plans which that are subject to ERISA, including the Company Aqua Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyAqua, any Company Aqua Subsidiary or any officer of the Company Aqua or any Company Aqua Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company , except as could not reasonably be expected to have an Aqua Material Adverse Effect.
(e) No Aqua Benefit Plans and trusts Plan or trust has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) with respect to any Company Aqua Benefit Plan during the last five years. Neither the Company Aqua nor any Company Aqua Subsidiary has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Pension Plan.
(df) With respect to any Company Aqua Benefit Plan that is an employee welfare benefit plan, (i) no such Company Aqua Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), and (ii) each no such Company Aqua Benefit Plan that is a "group provides for life, health, medical, disability or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health plan" (continuation coverage provided at no expense to Aqua or any Aqua Subsidiary as such term is defined in required by Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) 4980B of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting Part 6 of property) as a result Title I of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law)ERISA.
(g) None of the Company Benefit Plans provides There are no material actions, claims, liens or investigations existing or pending (other than routine claims for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(hbenefits) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the CompanyAqua, no labor organization threatened with respect to any Aqua Benefit Plan. No Aqua Benefit Plan is under audit or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with investigation by any Governmental Entity or arbitrator based onand no such completed audit, arising out ofif any, has resulted in connection with, or otherwise relating to the employment or termination of employment imposition of any individual by Tax during the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effectlast 12 months.
Appears in 2 contracts
Samples: Subscription, Merger and Exchange Agreement (Specialty Laboratories Inc), Subscription, Merger and Exchange Agreement (Ameripath Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a complete and correct list and brief description of all Company Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as a "Company Pension PlansPlan"), ) or "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryPlans. The Company has delivered or made available to Parent true, complete and correct copies of (i) each such Company Benefit Plan and each material Company Benefit Agreement (or, in the case of any unwritten such Company Benefit PlanPlan or material Company Benefit Agreement that is unwritten, a written description thereof), (ii) the two most recent annual report on Form 5500 reports required to be filed, or such similar reports, statements, information returns or material correspondence required to be filed with the Internal Revenue Service or delivered to any Governmental Entity, with respect to each material Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description for each material Company Benefit Plan for which such a summary plan description is required under applicable Law, and any summary of material modifications prepared for each material Company Benefit Plan, (iv) each trust agreement and group annuity or insurance contract and other documents relating to the funding or payment of benefits under any material Company Benefit Plan, (v) the most recent determination or qualification letter issued by any Governmental Entity for each Company Benefit Plan intended to qualify for favorable tax treatment for which such a letter has been obtained, as well as a true, correct and complete copy of each pending application therefor, if applicable, and (vi) the two most recent actuarial valuations for each material Company Benefit Plan for which actuarial valuations have been obtained.
(b) All Each Company Benefit Plan has been administered in compliance with its terms, and each Company Benefit Plan (and the Company and the Company Subsidiaries with respect to such plans) is in compliance with applicable Law, including ERISA and the Code, and the terms of any applicable collective bargaining agreements, except for such instances of noncompliance with either plan terms or Laws that, individually or in the aggregate, have not had and would not reasonably be likely to have a Company Material Adverse Effect.
(c) Each Company Pension Plans Plan intended to be tax- tax qualified have under United States Laws is so qualified and has been the subject of determination letters from the Internal Revenue Service with respect to all tax Law changes with respect to which the Internal Revenue Service is willing to provide a determination letter, to the effect that such Company Pension Plans are Plan is qualified and exempt from United States Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and ; no such determination letter has been revoked (nor, to the knowledge of the Company, has revocation been threatened, ) nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andrequire security under Section 307 of ERISA, except for such failures to qualify or to obtain such a determination letter and such revocations of determination letters and amendments that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect. Each Company Benefit Plan required to have been approved by any non-U.S. Governmental Entity (or permitted to have been approved to obtain any beneficial tax or other status) has been so approved; no such approval has been revoked (nor, to the knowledge of the Company, nothing has revocation been threatened) and no event has occurred since the date of such letter the most recent approval that could reasonably be expected to affect any such approval, except for such failures to approve, revocations of approval and events that, individually or in the qualified status of such planaggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect.
(cd) Except as disclosed in for liability that would not be reasonably likely to have a Company Material Adverse Effect, no liability under Title IV of ERISA or to the Pension Benefit Guaranty Corporation (other than PBGC insurance premiums) has been or is expected to be incurred by the Company Disclosure Letteror any Company Subsidiary or Commonly Controlled Entity with respect to any ongoing, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an frozen or terminated "unfunded benefit liabilitysingle-employer" plan (as such term is defined in Section 4001(a)(184001(a)(15) of ERISA), based on actuarial assumptions that have been furnished to Parentcurrently or formerly maintained by any of them. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company Pension Plans and related trusts has been terminated, nor has there been any "reportable event" (as defined in Section 4043 of ERISA) with respect to any Company Pension Plan, in each case during the last six years, and no notice of a reportable event will be required to be filed in connection with the Transactions, except for such terminations and reportable events that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect. None of the Company, any Company Subsidiary or any Commonly Controlled Entity has incurred, or reasonably expects to incur, a "complete withdrawal" or a "partial withdrawal" (as each such term is defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA that has had or would be reasonably likely to have a Company Material Adverse Effect.
(e) None of the Company, any Company Subsidiary, any officer employee of the Company or any Company Subsidiary, any of its the Company Subsidiary or Benefit Plans, including the Company Pension Plans and, to the knowledge of the Company, any trusts created under any of the Company Benefit Plans which are subject to ERISAor any trustee, including the administrator or other fiduciary of any Company Pension Plans, any trusts Benefit Plan or trust created thereunder or and any trustee or administrator thereofagent of the foregoing, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary Subsidiary, any such employee or any officer of the Company Benefit Plans, or, to the knowledge of the Company, any such trust, trustee, administrator or any Company Subsidiary other fiduciary, to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code, the sanctions imposed under Title I of ERISA or other substantially similar applicable Law or any other liability for breach of fiduciary duty under ERISA or any other applicable Law, except for such prohibited transactions and other breaches of fiduciary responsibility that, individually or in the aggregate, have not had and would not be reasonably likely to any liability under Section 502(i) or 502(1) of ERISA. None of such have a Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Material Adverse Effect.
(df) With respect to any Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies with the applicable requirements of Section 4980B(f) of the Code and any similar state statute, except for such failures to comply that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect, (iii) no such Company Benefit Plan provides benefits after termination of employment, except where the cost thereof is borne entirely by the former employee (or his or her eligible dependents or beneficiaries) or as required by Section 4980B(f) of the Code and (iv) each such Company Benefit Plan (including any such Company Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the or any Company Subsidiary on or at any time after the Effective Time.
(eg) Other than payments that may be made Except pursuant to the persons listed arrangements agreed in the Company Disclosure Letter (the "Primary Company Executives")writing by Parent or its affiliates, any amount no amount, economic benefit or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger Transactions (alone or in combination with any other Transaction event) by any employee, officer or director of the Company or any of its affiliates person who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or with respect to the Company Benefit Plan currently in effect ("Potential Parachute Payment") would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f, and no such disqualified individual is entitled to receive any additional payment from the Company, the Surviving Corporation or any other person in the event that the excise tax required by Section 4999(a) None of the Company Benefit Plans (i) Code is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactionsimposed on such disqualified individual.
(h) Except pursuant to (i) arrangements agreed in writing by Parent or its affiliates and (ii) the accelerated vesting of Company Stock Options held by any Participant, no Participant will be entitled to (A)(1) any severance, separation, change of control, termination, bonus or other additional compensation or benefits, or (2) any acceleration of the time of payment or vesting of any compensation or benefits or any forgiveness of indebtedness owed by such Participant, in each case as disclosed a result of any of the Transactions (alone or in combination with any other event) or in connection with the termination of such Participant's employment on or after the Effective Time or (B) any compensation or benefits related to or contingent upon, or the value of which will be calculated on the basis of, any of the Transactions (alone or in combination with any other event). The execution and delivery of this Agreement and the consummation of the Transactions (alone or in combination with any other event) and compliance by the Company Disclosure Letterwith the provisions hereof do not and will not require the funding (whether through a grantor trust or otherwise) of any Company Benefit Plan, Company Benefit Agreement or any other employment arrangement and will not limit the Company's ability to amend, modify or terminate any Company Benefit Plan or Company Benefit Agreement.
(i) Since January 1, 2003, and through the date of this Agreement, neither the Company nor any Company Subsidiary has an obligation received notice of, and, to adopt the knowledge of the Company, there are no (i) pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against, or involving or asserting any new rights or claims to benefits under, any Company Benefit Plan or, except as required by law, the amendment of an existing or Company Benefit Plan.
Agreement or (iii) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan has been operated or Company Benefit Agreement, except for such proceedings, suits, claims, actions and investigations that, individually or in all material respects in accordance with its terms the aggregate, have not had and the requirements of all applicable lawwould not be reasonably likely to have a Company Material Adverse Effect.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party has any liability or obligations, including under or on account of a Company Benefit Plan or Company Benefit Agreement, arising out of the hiring of persons to provide services to the Company or any Company Subsidiary and treating such persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary, except for any such liability and obligations that, individually or in the aggregate, have not had and would not be reasonably likely to have a collective bargaining agreement, and no Company Material Adverse Effect.
(k) None of the employees of the Company or any Company Subsidiary are is a member of, represented by or otherwise subject to any (i) labor organizationunion, works council or similar organization or (ii) collective bargaining agreement, industry-wide collective bargaining agreement or any similar collective agreement, in each case with respect to such employee's employment by the Company or any Company Subsidiary, and the Company and the Company Subsidiaries do not have any obligation (including to inform or consult with any such employees or their representatives in respect of the Transactions) with respect to any such organization or agreement. To Each of the Company and the Company Subsidiaries is in compliance with all applicable Laws and orders with respect to labor relations, employment and employment practices, occupational safety and health standards, terms and conditions of employment, payment of wages, classification of employees, immigration, visa, work status, pay equity and workers compensation, and is not engaged in any unfair labor practice, except for such failures to comply and unfair labor practices that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect. There is no unfair labor practice charge or complaint against the Company or any Company Subsidiary pending or, to the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with before the National Labor Relations Board or any other comparable Governmental Entity that has had or would be reasonably likely to have a Company Material Adverse Effect. Since December 31, 2003, there has been no, and there currently is no, labor relations tribunal strike, material dispute, request for representation, union organization attempt, slowdown or authority. To stoppage actually pending or, to the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving threatened against or affecting the Company or any Company Subsidiary pending with any labor organization that, individually or group of employees of in the Company aggregate, has had or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could would reasonably be expected to have a Company Material Adverse Effect. No grievance or arbitration proceeding arising out of a collective bargaining agreement is pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary that has had or would be reasonably likely to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Metaldyne Corp), Agreement and Plan of Merger (Credit Suisse/)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a complete and correct list and brief description of all "Company Benefit Plans that are “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "a “Company Pension Plans"), "Plan”) or “employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryPlans. The Company has delivered or made available to Parent true, complete and correct copies of (i) each such Company Benefit Plan and each material Company Benefit Agreement (or, in the case of any unwritten such Company Benefit PlanPlan or material Company Benefit Agreement that is unwritten, a written description thereof), (ii) the two most recent annual report on Form 5500 reports required to be filed, or such similar reports, statements, information returns or material correspondence required to be filed with the Internal Revenue Service or delivered to any Governmental Entity, with respect to each material Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description for each material Company Benefit Plan for which such a summary plan description is required under applicable Law, and any summary of material modifications prepared for each material Company Benefit Plan, (iv) each trust agreement and group annuity or insurance contract and other documents relating to the funding or payment of benefits under any material Company Benefit Plan, (v) the most recent determination or qualification letter issued by any Governmental Entity for each Company Benefit Plan intended to qualify for favorable tax treatment for which such a letter has been obtained, as well as a true, correct and complete copy of each pending application therefor, if applicable, and (vi) the two most recent actuarial valuations for each material Company Benefit Plan for which actuarial valuations have been obtained.
(b) All Each Company Benefit Plan has been administered in compliance with its terms, and each Company Benefit Plan (and the Company and the Company Subsidiaries with respect to such plans) is in compliance with applicable Law, including ERISA and the Code, and the terms of any applicable collective bargaining agreements, except for such instances of noncompliance with either plan terms or Laws that, individually or in the aggregate, have not had and would not reasonably be likely to have a Company Material Adverse Effect.
(c) Each Company Pension Plans Plan intended to be tax- tax qualified have under United States Laws is so qualified and has been the subject of determination letters from the Internal Revenue Service with respect to all tax Law changes with respect to which the Internal Revenue Service is willing to provide a determination letter, to the effect that such Company Pension Plans are Plan is qualified and exempt from United States Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and ; no such determination letter has been revoked (nor, to the knowledge of the Company, has revocation been threatened, ) nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andrequire security under Section 307 of ERISA, except for such failures to qualify or to obtain such a determination letter and such revocations of determination letters and amendments that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect. Each Company Benefit Plan required to have been approved by any non-U.S. Governmental Entity (or permitted to have been approved to obtain any beneficial tax or other status) has been so approved; no such approval has been revoked (nor, to the knowledge of the Company, nothing has revocation been threatened) and no event has occurred since the date of such letter the most recent approval that could reasonably be expected to affect any such approval, except for such failures to approve, revocations of approval and events that, individually or in the qualified status of such planaggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect.
(cd) Except as disclosed in for liability that would not be reasonably likely to have a Company Material Adverse Effect, no liability under Title IV of ERISA or to the Pension Benefit Guaranty Corporation (other than PBGC insurance premiums) has been or is expected to be incurred by the Company Disclosure Letteror any Company Subsidiary or Commonly Controlled Entity with respect to any ongoing, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" frozen or terminated “single-employer” plan (as such term is defined in Section 4001(a)(184001(a)(15) of ERISA), based on actuarial assumptions that have been furnished to Parentcurrently or formerly maintained by any of them. None of the Company Pension Plans has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company Pension Plans and related trusts has been terminated, nor has there been any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Company Pension Plan, in each case during the last six years, and no notice of a reportable event will be required to be filed in connection with the Transactions, except for such terminations and reportable events that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect. None of the Company, any Company Subsidiary or any Commonly Controlled Entity has incurred, or reasonably expects to incur, a “complete withdrawal” or a “partial withdrawal” (as each such term is defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA that has had or would be reasonably likely to have a Company Material Adverse Effect.
(e) None of the Company, any Company Subsidiary, any officer employee of the Company or any Company Subsidiary, any of its the Company Subsidiary or Benefit Plans, including the Company Pension Plans and, to the knowledge of the Company, any trusts created under any of the Company Benefit Plans which are subject to ERISAor any trustee, including the administrator or other fiduciary of any Company Pension Plans, any trusts Benefit Plan or trust created thereunder or and any trustee or administrator thereofagent of the foregoing, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary Subsidiary, any such employee or any officer of the Company Benefit Plans, or, to the knowledge of the Company, any such trust, trustee, administrator or any Company Subsidiary other fiduciary, to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code, the sanctions imposed under Title I of ERISA or other substantially similar applicable Law or any other liability for breach of fiduciary duty under ERISA or any other applicable Law, except for such prohibited transactions and other breaches of fiduciary responsibility that, individually or in the aggregate, have not had and would not be reasonably likely to any liability under Section 502(i) or 502(1) of ERISA. None of such have a Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Material Adverse Effect.
(df) With respect to any Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no such Company Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), ) complies with the applicable requirements of Section 4980B(f) of the Code and any similar state statute, except for such failures to comply that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect, (iii) no such Company Benefit Plan provides benefits after termination of employment, except where the cost thereof is borne entirely by the former employee (or his or her eligible dependents or beneficiaries) or as required by Section 4980B(f) of the Code and (iv) each such Company Benefit Plan (including any such Company Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the or any Company Subsidiary on or at any time after the Effective Time.
(eg) Other than payments that may be made Except pursuant to the persons listed arrangements agreed in the Company Disclosure Letter (the "Primary Company Executives")writing by Parent or its affiliates, any amount no amount, economic benefit or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger Transactions (alone or in combination with any other Transaction event) by any employee, officer or director of the Company or any of its affiliates person who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or with respect to the Company Benefit Plan currently in effect (“Potential Parachute Payment”) would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(f, and no such disqualified individual is entitled to receive any additional payment from the Company, the Surviving Corporation or any other person in the event that the excise tax required by Section 4999(a) None of the Company Benefit Plans (i) Code is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactionsimposed on such disqualified individual.
(h) Except pursuant to (i) arrangements agreed in writing by Parent or its affiliates and (ii) the accelerated vesting of Company Stock Options held by any Participant, no Participant will be entitled to (A)(1) any severance, separation, change of control, termination, bonus or other additional compensation or benefits, or (2) any acceleration of the time of payment or vesting of any compensation or benefits or any forgiveness of indebtedness owed by such Participant, in each case as disclosed a result of any of the Transactions (alone or in combination with any other event) or in connection with the termination of such Participant’s employment on or after the Effective Time or (B) any compensation or benefits related to or contingent upon, or the value of which will be calculated on the basis of, any of the Transactions (alone or in combination with any other event). The execution and delivery of this Agreement and the consummation of the Transactions (alone or in combination with any other event) and compliance by the Company Disclosure Letterwith the provisions hereof do not and will not require the funding (whether through a grantor trust or otherwise) of any Company Benefit Plan, Company Benefit Agreement or any other employment arrangement and will not limit the Company’s ability to amend, modify or terminate any Company Benefit Plan or Company Benefit Agreement.
(i) Since January 1, 2003, and through the date of this Agreement, neither the Company nor any Company Subsidiary has an obligation received notice of, and, to adopt the knowledge of the Company, there are no (i) pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against, or involving or asserting any new rights or claims to benefits under, any Company Benefit Plan or, except as required by law, the amendment of an existing or Company Benefit Plan.
Agreement or (iii) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan has been operated or Company Benefit Agreement, except for such proceedings, suits, claims, actions and investigations that, individually or in all material respects in accordance with its terms the aggregate, have not had and the requirements of all applicable lawwould not be reasonably likely to have a Company Material Adverse Effect.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party has any liability or obligations, including under or on account of a Company Benefit Plan or Company Benefit Agreement, arising out of the hiring of persons to provide services to the Company or any Company Subsidiary and treating such persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary, except for any such liability and obligations that, individually or in the aggregate, have not had and would not be reasonably likely to have a collective bargaining agreement, and no Company Material Adverse Effect.
(k) None of the employees of the Company or any Company Subsidiary are is a member of, represented by or otherwise subject to any (i) labor organizationunion, works council or similar organization or (ii) collective bargaining agreement, industry-wide collective bargaining agreement or any similar collective agreement, in each case with respect to such employee’s employment by the Company or any Company Subsidiary, and the Company and the Company Subsidiaries do not have any obligation (including to inform or consult with any such employees or their representatives in respect of the Transactions) with respect to any such organization or agreement. To Each of the Company and the Company Subsidiaries is in compliance with all applicable Laws and orders with respect to labor relations, employment and employment practices, occupational safety and health standards, terms and conditions of employment, payment of wages, classification of employees, immigration, visa, work status, pay equity and workers compensation, and is not engaged in any unfair labor practice, except for such failures to comply and unfair labor practices that, individually or in the aggregate, have not had and would not be reasonably likely to have a Company Material Adverse Effect. There is no unfair labor practice charge or complaint against the Company or any Company Subsidiary pending or, to the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with before the National Labor Relations Board or any other comparable Governmental Entity that has had or would be reasonably likely to have a Company Material Adverse Effect. Since December 31, 2003, there has been no, and there currently is no, labor relations tribunal strike, material dispute, request for representation, union organization attempt, slowdown or authority. To stoppage actually pending or, to the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving threatened against or affecting the Company or any Company Subsidiary pending with any labor organization that, individually or group of employees of in the Company aggregate, has had or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could would reasonably be expected to have a Company Material Adverse Effect. No grievance or arbitration proceeding arising out of a collective bargaining agreement is pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary that has had or would be reasonably likely to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Metaldyne Corp), Agreement and Plan of Merger (Masco Corp /De/)
ERISA Compliance; Excess Parachute Payments. (a) The -------------------------------------------- Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company ----- ------- Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ------------- ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made used its best efforts to make available to Parent true, complete and correct copies in all material respects of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 and Schedule B thereto (including any related actuarial valuation report) filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Except as disclosed in the Company Disclosure Letter, all Company Pension Plans intended to be tax- qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge Knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts. The Company has made available to Parent true, to the knowledge complete and correct copies of the Company, nothing has occurred since the date of such letter that could reasonably be expected determination letters referred to affect the qualified status of such planherein.
(c) Except as disclosed in the Company Disclosure LetterLetter with respect to ENSTAR Corporation, no Company Pension Plan, other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during for which the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable disclosure requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.4043.1
Appears in 2 contracts
Samples: Merger Agreement (Union Texas Petroleum Holdings Inc), Agreement and Plan of Merger (Atlantic Richfield Co /De)
ERISA Compliance; Excess Parachute Payments. (a) The -------------------------------------------- Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein ----- as "Company Pension Plans"), "employee welfare benefit plans" (as defined in --------------------- Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCompany. The Company has made available delivered to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof)) and each amendment thereto, (ii) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Except as disclosed in the Company Disclosure Letter, all Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Internal Revenue Code of 1986, as amended (the "Code"), and no such ---- determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination determi nation letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan had, as is a "multiemployer plan" within the meaning of the respective last annual valuation date for each such Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan, an "unfunded benefit liability" ) ---------------------------------- or is subject to (as such term is defined in Section 4001(a)(18i) the minimum funding requirements of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code)Code or Section 306 of ERISA or (ii) Title IV of ERISA, whether and the Company has no actual or not waivedcontingent liability in respect of any such plan. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such The Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has not incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Pension Plan.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, except as disclosed in the Company Disclosure Letter, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section Sections 4980B(f) ), 9801 and 9802 of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company (other than for ordinary administrative expenses incurred and benefits accrued through the Company Subsidiary date of such amendment or termination) on or at any time after the Effective Time.
(e) Other than payments that All Company Benefit Plans have been administered in accordance with their terms in all material respects, and comply in form and in operation in all material respects with applicable law.
(f) No amount paid or expected to be payable under existing benefit plans, arrangements or agreements to any employee or former employee of the Company based on current or past compensation levels of such employee, as the case may be, would fail to be deductible by virtue of Section 162(m) of the Code.
(g) There has been no act or omission which has given rise to or may give rise to material fines, penalties, taxes or charges under Section 502(c) of ERISA or Chapters 43, 47, or 68 of the Code for which the Company is or may be made liable.
(h) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the persons listed Company's knowledge, threatened involving any Company Benefit Plan that, individually or in the aggregate, have had or would reasonably be expected to have a Company Disclosure Letter Material Adverse Effect.
(i) The Company has no material liability or contingent liability under any plan, arrangement or agreement for providing post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA or Section 4980B (or any predecessor section thereto) of the "Primary Company Executives"), any Code or other applicable Law.
(j) No amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Schering Berlin Inc), Merger Agreement (Diatide Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.19(a) of the Company Disclosure Letter contains a list and brief description of all "“employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended 1974 ("“ERISA"”)) (sometimes referred to herein as "each such plan, excluding any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (“Multiemployer Plan”), a “Company Pension Plans"Plan”), "all material “employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, consultants, officers or directors of the Company or any Company Subsidiary. Each Company Benefit Plan has been administered in all material respects in compliance with its terms and, if subject to ERISA and the Code, with the requirements of ERISA and the Code. No Proceeding is pending or, to the Knowledge of the Company, threatened, with respect to any Company Benefit Plan, in each case that is reasonably expected to result in a material liability to the Company or a Company Subsidiary. All contributions required to be made to each Company Benefit Plan as of the date hereof have been timely made and all obligations in respect of each Company Benefit Plan have been properly accrued and reflected on the Company’s financial statements except where the failure to do so is not material. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan set forth in Section 3.19(a) of the Company Disclosure Letter and all amendments thereto (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan Plan, to the extent applicable, for the two most recent plan years (if any such A) the annual report was requiredon Form 5500 and attached schedules, (B) and audited financial statements, (C) actuarial valuation reports, if anyand (D) attorney’s response to an auditor’s request for information, (iii) the most recent summary plan description for each Company Benefit Plan (or other written explanation provided to employees in the case of a Company Benefit Plan for which such summary plan description is required not required) and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Company Pension Plans that are intended to be tax- qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are so qualified and all related trusts that are intended to be exempt from Federal income taxes under Sections 401(aSection 501(a) and 501(a), respectively, of the CodeCode have been the subject of determination letters from the Internal Revenue Service to the effect that such trusts are so exempt, and no such determination letter has been revoked nor, to the knowledge Knowledge of the Company, has revocation been threatenedthreatened or any fact or event occurred that would reasonably be expected to adversely affect the qualified status of any such Company Pension Plan or the exempt status of any such trust, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would reasonably be expected to adversely affect its qualification or materially increase its costs andcosts.
(c) None of the Company Benefit Plans are subject to Title IV of ERISA, and neither the Company nor any Company Subsidiary has any liability or obligation with respect to a Multiemployer Plan. There are no pending, or to the knowledge Knowledge of the Company, nothing has occurred since threatened Proceedings against any Company Pension Plan, any fiduciary thereof, the date of such letter Company or any Company Subsidiary that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed have, individually or in the aggregate, a Company Disclosure Letter, no Company Pension Plan had, as Material Adverse Effect. To the Knowledge of the respective last annual valuation date for each such Company Pension PlanCompany, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None none of the Company, any Company Subsidiary, any officer of the Company or of any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or of any Company Subsidiary to the any material tax or material penalty on prohibited transactions imposed by such Section 4975 of the Code or to any material liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, other than in a “standard termination” (as defined in ERISA), nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA, but excluding reportable events with respect to which notice has been waived by the Pension Benefit Guaranty Corporation (“PBGC”)) with respect to any Company Benefit Pension Plan during the last five two years.
(d) With respect to Company Pension Plans that are subject to or governed by the Laws of any jurisdiction other than the United States (the “Non-US Company Pension Plans”), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) all amounts required to be reserved under each book reserved Non-US Company Pension Plan have been so reserved in accordance with GAAP and (ii) each Non-US Company Pension Plan required to be registered with a Governmental Entity has been registered, has been maintained in good standing with the appropriate Governmental Entities, has been maintained and operated in all respects in accordance with its terms and is in compliance with all applicable Law.
(e) Any arrangement of the Company or any Company Subsidiary that is subject to Section 409A of the Code was administered in reasonable, good faith compliance with the requirements of Section 409A through December 31, 2008, and all arrangements of the Company or any Company Subsidiary that are subject to Section 409A, provide for payment after December 31, 2008 and were in existence on such date have been amended to comply with the requirements of the final regulations under Section 409A, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 any obligation to provide any gross-up payment to any individual with respect to any multiemployer pension plan (within income tax, additional tax or interest charge imposed pursuant to Section 409A of the meaning of Section 4001(a)(3) of ERISA)Code, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(df) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), and (ii) each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeCode.
(eg) Other than payments that may be made to the persons Persons listed in Section 3.19(g) of the Company Disclosure Letter (the "“Primary Company Executives"”), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger, the Subsequent Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates Affiliates who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(f) None of . To its Knowledge, the Company has provided Parent with true, complete and accurate information regarding the Company Benefit Plans (i) is a "multiemployer plan" within and the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None compensation histories of the Primary Company Benefit Plans provides for payment Executives by which Parent’s representatives could estimate (using such assumptions as are selected by Parent) the amount of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactionssuch excess parachute payments in all material respects.
(h) Except as disclosed in The execution and delivery by the Company Disclosure Letterof this Agreement do not, neither and the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by lawconsummation of the Merger, the amendment of an existing Company Benefit Plan.
Subsequent Merger and the other Transactions and compliance with the terms hereof and thereof will not (i) Except as disclosed in the Company Disclosure Letterentitle any employee, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees officer or director of the Company or any Company Subsidiary are represented by to severance pay, (ii) accelerate the time of payment or vesting or trigger any labor organization. To payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the knowledge of the Companyamount payable or trigger any other material obligation pursuant to, no labor organization or group of employees of the Company or any Company Subsidiary has made Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a pending demand for recognition or certificationdefault under, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization Benefit Plan or group of employees of the Company or any Company SubsidiaryBenefit Agreement.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Hewitt Associates Inc), Merger Agreement (Aon Corp)
ERISA Compliance; Excess Parachute Payments. (a) Each Company Benefit Plan has been administered in all material respects in accordance with its terms. The Company, the Company Disclosure Letter contains a list Subsidiaries and brief description of the Company Benefit Plans are all "employee pension benefit plans" (as defined in Section 3(2) compliance in all material respects with the applicable provisions of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA")) (sometimes referred to herein as "Company Pension Plans"”), "the Code and all other applicable Laws, including Laws of foreign jurisdictions, and the terms of all collective bargaining agreements. No Company Benefit Plan provides benefits primarily to persons who are or were employed, or provide or provided services, outside the United States.
(b) Each Company Benefit Plan that is an “employee welfare pension benefit plans" plan” (as defined in Section 3(13(2) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Planeach, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All “Company Pension Plans Plan”) intended to be tax- tax-qualified have been the subject of has received favorable determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, ) of the Code, and no such determination letter has been revoked (nor, to the knowledge of the Company, has revocation been threatened, nor threatened in writing) and no event has any such Company Pension Plan been amended occurred since the date of its the most recent determination letter or application therefor in relating to such Company Pension Plan (including any respect amendment thereto) that would is reasonably likely to adversely affect its the qualification of such Company Pension Plan or materially increase the costs relating thereto or require security under Section 307 of ERISA. Each Company Pension Plan has complied since its costs andinception, or has been timely amended to comply, with the requirements of the Economic Growth and Tax Relief Reconciliation Act of 2001. All Company Benefit Plans required or permitted to have been approved by any non-U.S. Governmental Entity have been so approved, no such approval has been revoked (nor, to the knowledge of the Company, nothing has revocation been threatened in writing) and no event has occurred since the date of the most recent approval or application therefor relating to any such letter Company Benefit Plan that could is reasonably be expected likely to materially affect any such approval relating thereto or materially increase the qualified status of such plancosts relating thereto.
(c) Except as disclosed Neither the Company nor any Commonly Controlled Entity has incurred, or reasonably expects to incur, any liability under Title IV of ERISA or Section 412 of the Code, except for premiums payable to the Pension Benefit Guaranty Corporation in the Company Disclosure Letter, no ordinary course of business. No Company Pension Plan had, as of the respective last its most recent annual valuation date for each such Company Pension Plandate, an "any “unfunded benefit liability" liabilities” (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have and there has been furnished to Parent. None no material adverse change in the financial condition of the such Company Pension Plans Plan since such valuation date. No Company Pension Plan has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. During the prior six years, no Company Pension Plan or its related trust has been terminated and there has not been any other “reportable event” (as defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Pension Plan. During the prior six years, neither the Company nor any Commonly Controlled Entity incurred any liability in respect of a “withdrawal”, “complete withdrawal” or “partial withdrawal” from any Company Benefit Plan that is a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (within the meaning of Sections 4063 and 4064 of ERISA).
(d) None of the Company and the Company Subsidiaries has received notice of, and to the knowledge of the Company, there are no investigations by any Company SubsidiaryGovernmental Entity with respect to, any officer of termination proceedings or other claims (except claims for benefits payable in the Company or any of its Company Subsidiary or any normal operation of the Company Benefit Plans which Plans), suits, proceedings or other actions against or involving any Company Benefit Plan or asserting any rights or claims to benefits under any Company Benefit Plan that, if adversely determined, individually or in the aggregate, is reasonably likely to have a Company Material Adverse Effect, and, to the knowledge of the Company, there are subject not any facts that, individually or in the aggregate, is reasonably likely to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged result in a "Company Material Adverse Effect in the event of any such investigation, claim, suit, proceeding or other action.
(e) With respect to each Company Benefit Plan, there has not occurred any “prohibited transaction" ” (as such term is defined in within the meaning of Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could is reasonably likely to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of their respective employees, or any trustee, administrator or other fiduciary of any trust created under any Company Benefit Plan, to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or the sanctions imposed under Title I of ERISA or to any liability for breach of fiduciary duty under Section 502(iERISA or any other applicable Law, except taxes or penalties that, individually or in the aggregate, is not reasonably likely to have a Company Material Adverse Effect.
(f) or 502(1) of ERISA. None of such Each Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" Plan that is an employee welfare benefit plan may be amended or terminated (as that term is defined in Section 4043 of ERISA) including with respect to benefits provided to retirees and other former employees) without material liability (other than liability for benefits then payable under such plan without regard to such amendment or termination) to the Company or any Company Benefit Plan during Subsidiary at any time after the last five yearsEffective Time. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" any material obligations for retiree health or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to life insurance benefits under any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in other than for continuation coverage required under Section 419(e4980B(f) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(eg) Other than payments that may be made to None of the persons listed in execution and delivery of this Agreement, the obtaining of the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property Stockholder Approval or the vesting of property) as a result consummation of the Merger or any other Transaction by transaction contemplated hereby alone or in combination with any employeeother event will (i) entitle any director, officer officer, employee or director consultant, or any former director, officer, employee or consultant, of the Company or any Company Subsidiary to change of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employmentcontrol, severance or termination agreementcompensation or benefits, (ii) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other compensation arrangement material obligation pursuant to, any Company Benefit Plan (or any grant or award thereunder) or Company Benefit Agreement or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan currently (or any grant or award thereunder) or Company Benefit Agreement. No amount or benefit that could be received by any named executive officer of the Company (as defined for purposes of Section 16 of the Exchange Act) in effect connection with the transactions contemplated by this Agreement (alone or in combination with any other event) would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees such person is entitled to any additional payment or benefit in the event the excise tax under Section 4999 of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company SubsidiaryCode is imposed on such person.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (United Defense Industries Inc), Merger Agreement (United Defense Industries Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.20(a) of the Company Disclosure Letter contains a list and brief description of all "Company Benefit Plans and Company Benefit Agreements, including any “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended 1974 ("“ERISA"”)) (sometimes referred to herein as "“Company Pension Plans"), "”) and “employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) ). Except as individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Benefit Plan and Company Benefit Agreement has been administered in compliance with its terms and with the requirements of Law, including ERISA and the Code. No Proceeding is pending or, to the Knowledge of the Company, threatened, with respect to any Company Benefit Plan or Company Benefit Agreement. All contributions required to be made to each Company Benefit Plan and Company Benefit Agreement have been timely made and all other obligations in respect of each Company Benefit Plans maintained, or contributed to, by Plan and Company Benefit Agreement have been properly accrued and reflected on the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCompany’s financial statements. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement and all amendments thereto (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan, to the extent applicable, for the two most recent plan years (A) the annual report on Form 5500 and attached schedules, (B) audited financial statements of such Company Benefit Plan and (if any such report was requiredC) and actuarial valuation reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan (or other written explanation provided to employees in the case of a Company Benefit Plan for which such summary plan description is required and not required), (iv) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan intended to be qualified under Section 401(a) of the Code, (v) any request for a determination currently pending before the IRS, (vi) all correspondence with the IRS, the Department of Labor, the SEC or Pension Benefit Guaranty Corporation relating to any outstanding controversy or audit and (vii) each trust agreement and trust, insurance, administrative or group annuity contract relating to any Company Benefit Plan.
(b) All Company Pension Plans that are intended to be tax- qualified under Section 401(a) of the Code have been the subject of determination or opinion letters from the Internal Revenue Service IRS to the effect that such Company Pension Plans are so qualified and all related trusts that are intended to be exempt from Federal federal income taxes under Sections 401(aSection 501(a) and 501(a), respectively, of the CodeCode have been the subject of determination or opinion letters from the IRS to the effect that such trusts are so exempt, and no such determination or opinion letter has been revoked nor, to the knowledge Knowledge of the Company, has revocation been threatenedthreatened or any fact or event occurred that would reasonably be expected to adversely affect the qualified status of any such Company Pension Plan or the exempt status of any such trust, nor has any such Company Pension Plan been amended since the date of its most recent determination or opinion letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, costs. Neither the Company nor any Company Subsidiary has any liability or obligation under any Company Benefit Plan or Company Benefit Agreement to provide benefits after termination of employment to any employee or dependent other than as required by Section 4980B of the knowledge Code. None of the Company, nothing any Company Subsidiary or any of their respective ERISA Affiliates has occurred since any liability for a failure to comply with Section 4980B of the date Code or Part 6 of such letter that could reasonably be expected to affect the qualified status Subtitle B of such planTitle I of ERISA.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company, any Company Pension Plans Subsidiary or any of their respective ERISA Affiliates currently maintains, contributes to or has an "accumulated funding deficiency" any liability under or, at any time during the past six (as such term 6) years has maintained or contributed to, any pension plan which is defined in subject to Section 412 of the Code or Section 302 of ERISA or Section 412 Title IV of ERISA. None of the CodeCompany, any Company Subsidiary or any of their respective ERISA Affiliates currently maintains, contributes to or has any liability under or, at any time during the past six (6) years has maintained or contributed to, any multiemployer plan (as defined in Section 4001(a)(3) of ERISA). Except as individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect, whether or not waived. None none of the Company, any Company Subsidiary, any officer of the Company or of any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility responsibility.
(d) With respect to Company Pension Plans that could are subject to or governed by the Laws of any jurisdiction other than the United States (the “Non-US Company Pension Plans”), except as individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) the fair market value of the assets of each funded Non-US Company Pension Plan, the liability of each insurer for any Non-US Company Pension Plan funded through insurance or the reserve shown on the Company’s financial statements for any unfunded Non-US Company Pension Plan, together with any accrued contributions, is sufficient to procure or provide for the projected benefit obligations, as of the Effective Time, with respect to all current and former participants in such plan based on reasonable, country specific actuarial assumptions and valuations and no transaction contemplated by this Agreement shall cause such assets or insurance obligations or book reserve to be less than such projected benefit obligations and (ii) each Non-US Company Subsidiary or Pension Plan required to be registered with a Governmental Entity has been registered, has been maintained in good standing with the appropriate Governmental Entities and has been maintained and operated in all respects in accordance with its terms and is in compliance with all applicable Law.
(e) With respect to any officer arrangement of the Company or any Company Subsidiary that is subject to Section 409A of the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(iCode, (i) or 502(1) of ERISA. None the written terms of such arrangement has at all times since January 1, 2009 been in compliance with, and (ii) such arrangement has, at all times while subject to Section 409A of the Code, been operated in compliance with, Section 409A of the Code and all applicable guidance thereunder, in each case except as individually or in the aggregate has not had and would not reasonably be expected to have a Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five yearsMaterial Adverse Effect. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 any obligation to provide any gross-up payment to any individual with respect to any multiemployer pension plan (within income tax, additional tax or interest charge imposed pursuant to Section 409A of the meaning of Section 4001(a)(3) of ERISA)Code.
(df) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), ) and (ii) each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeCode.
(eg) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any No amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or Merger, the Subsequent Merger, any other Transaction or the Financing by any employee, officer or director of the Company or any of its affiliates Affiliates who is a "“disqualified individual" ” (as such term is defined in proposed U.S. Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Plan or Company Benefit Plan currently in effect would not Agreement, either alone or together with any other event, could be characterized as an "excess a “parachute payment" ” (as defined in Section 280G(b)(1) 280G of the Code).
(fh) None of The execution, delivery and performance by the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or do not, and the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by lawMerger, the amendment of an existing Company Benefit Plan.
Subsequent Merger, the other Transactions or the Financing and compliance with the terms hereof and thereof will not (i) Except as disclosed in the Company Disclosure Letterentitle any employee, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees officer or director of the Company or any Company Subsidiary are represented by to any labor organization. To severance, transaction bonus, retention or other payment, (ii) accelerate the knowledge time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the Companyamount payable or trigger any other material obligation pursuant to, no labor organization or group of employees of the Company or any Company Subsidiary has made Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a pending demand for recognition or certificationdefault under, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization Benefit Plan or group of employees of the Company or any Company SubsidiaryBenefit Agreement.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (SXC Health Solutions Corp.), Merger Agreement (Catalyst Health Solutions, Inc.)
ERISA Compliance; Excess Parachute Payments. (ai) The Section 3.01(k) of the Company Disclosure Letter Schedule contains a list and brief description of all each Benefit Plan that is an "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as a "Company Pension PlansPlan"), "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiaryand Benefit Agreements. The Company has made available to Parent true, complete and correct copies of (ia) each Company Benefit Plan and Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Benefit Agreement, a description thereof), (iib) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiic) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (ivd) each trust agreement and insurance or group annuity contract relating to any Company Benefit Plan.
(bii) Each Benefit Plan has been administered in accordance with its terms in all material respects. The Company, its subsidiaries and each Benefit Plan are in compliance in all material respects with the applicable provisions of ERISA and the Code, and all other applicable laws, including laws of foreign jurisdictions. All Company Pension Plans intended to be tax- tax-qualified have been the subject of either received a favorable determination letters letter from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or the remedial amendment period under Section 401(b) of the Code has not expired, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended event occurred since the date of its most recent determination letter or letter, application therefor in any respect or Pension Plan's adoption that would adversely affect its qualification or materially increase its costs andcosts. All Pension Plans required to have been approved by any foreign Governmental Entity have been so approved; no such approval has been revoked (or, to the knowledge of the Company, nothing has revocation been threatened) nor has any event occurred since the date of the most recent approval or application therefor relating to any such Pension Plan that would materially affect any such approval relating thereto or materially increase the costs relating thereto. The Company has delivered to Parent a true and complete copy of the most recent determination letter that could reasonably be expected received with respect to affect the qualified status each Pension Plan, as well as a true and complete copy of such planeach pending application for a determination letter, if any.
(ciii) Except as disclosed in No Pension Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Pension Plan") or is subject to the provisions of Title IV of ERISA, and neither the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) nor any Commonly Controlled Entity could have any liability under Title IV of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiaryof its subsidiaries, any officer of the Company or any of its Company Subsidiary subsidiaries or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary of its subsidiaries or any officer of the Company or any Company Subsidiary of its subsidiaries to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated. All contributions and premiums and benefit payments required to be made under the terms of any Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent consolidated balance sheet included in the Company Filed SEC Documents.
(iv) All material reports, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) returns and similar documents with respect to all Benefit Plans required to be filed with any Company Governmental Entity or distributed to any Benefit Plan during the last five yearsparticipant have been duly and timely filed or distributed. Neither None of the Company nor or any of its subsidiaries has received notice of, and to the knowledge of the Company, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that could give rise to any liability, and, to the knowledge of the Company, there are not any facts that could give rise to any liability in the event of any such investigation, claim, suit or proceeding.
(v) The Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205its subsidiaries, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies comply in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Code. Neither the Company nor any of its subsidiaries has any obligations for retiree health or life insurance benefits under any Benefit Plan or Benefit Agreement.
(vi) Except as expressly contemplated by this Agreement or as set forth in any Employment Agreement, none of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated by this Agreement and the Stockholder Agreement (including as a result of any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after termination of employment following the Effective Time) will (x) entitle any employee, officer, consultant or director of the Company or any of its subsidiaries to severance or termination pay, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Benefit Plans or Benefit Agreements or (z) result in any breach or violation of, or a default under, any of the Benefit Plans or Benefit Agreements.
(evii) Other than payments or benefits that may be made or provided to the persons listed in Section 3.01(k)(vii) of the Company Disclosure Letter Schedule (the "Primary Company Executives"), any no amount or other entitlement or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction transaction contemplated by this Agreement or the Stockholder Agreement (including as a result of termination of employment on or following the Effective Time) by or for the benefit of any employee, officer officer, director or director consultant of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect or Benefit Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f, and no disqualified individual is entitled to receive any additional payment from the Company or any of its subsidiaries, the Surviving Corporation or any other person in the event that the excise tax under Section 4999 of the Code is imposed on such disqualified individual. Set forth in Section 3.01(k)(vii) None of the Company Disclosure Schedule is (a) the estimated maximum amount that could be paid to each Primary Company Executive as a result of the Merger and the other transactions contemplated by this Agreement and the Stockholder Agreement based upon the assumptions set forth therein (including as a result of a termination of employment on or following the Effective Time) under all Benefit Plans and Benefit Agreements and (ib) is a the "multiemployer planbase amount" within the meaning of (as defined in Section 4001(a)(3280G(b)(3) of ERISA or (iithe Code) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the for each Primary Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, Executive calculated as of the date of this Agreement, each .
(viii) The Company Benefit Plan has been operated and its subsidiaries are in compliance in all material respects in accordance with all Federal, state and local requirements regarding employment. Neither the Company nor any of its terms subsidiaries is a party to any collective bargaining or other labor union contract applicable to persons employed by the Company or any of its subsidiaries and no collective bargaining agreement is being negotiated by the requirements Company or any of all applicable law.
(j) its subsidiaries. As of the date of this Agreement, the Company there is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementno labor dispute, and no employees of strike or work stoppage against the Company or any Company Subsidiary are represented by any labor organization. To of its subsidiaries pending or, to the knowledge of the Company, no threatened which may interfere with the respective business activities of the Company or its subsidiaries. As of the date of this Agreement, to the knowledge of the Company, none of the Company, any of its subsidiaries or any of their respective representatives or employees has committed an unfair labor organization or group practice in connection with the operation of employees the respective businesses of the Company or any Company Subsidiary has made a pending demand for recognition or certificationof its subsidiaries, and there are is no representation charge or certification proceedings complaint against the Company or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with any of its subsidiaries by the National Labor Relations Board or any other labor relations tribunal comparable governmental agency pending or authority. To the knowledge threatened in writing.
(ix) None of the CompanyCompany nor any of its subsidiaries has any material liability or obligations, as including under or on account of a Benefit Plan, arising out of the date hiring of this Agreement, there are no organizing activities involving persons to provide services to the Company or any Company Subsidiary pending with any labor organization of its subsidiaries and treating such persons as consultants or group of independent contractors and not as employees of the Company or any Company Subsidiaryof its subsidiaries.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Mp3 Com Inc), Merger Agreement (Vivendi)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a complete and correct list and brief description of all Company Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as all such plans, collectively, the "Company Pension Plans"), ) or "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintainedPlans; provided, however, that no Company Benefit Agreement shall be deemed a Company Benefit Plan or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors listed in Section 3.11(a) of the Company Disclosure Letter. Each Company Benefit Plan has been administered in compliance with its terms and applicable Law, and the terms of any applicable collective bargaining agreements, except to the extent that the failure to comply with any such terms or any Law, individually or in the aggregate, would not reasonably be expected to have a Company SubsidiaryMaterial Adverse Effect. The Company has delivered or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and each Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service (including accompanying schedules and attachments) with respect to each Company Benefit Plan (if any for which such a report was is required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and under ERISA, (iv) each material trust agreement and material group annuity contract relating to the funding or payment of benefits under any Company Benefit Plan, (v) the most recent determination or qualification letter issued by the Internal Revenue Service for each Company Benefit Plan intended to qualify for favorable tax treatment in the United States of America, as well as a true, correct and complete copy of each pending application for such letter, if applicable, and (vi) the most recent actuarial valuation, if applicable, for each Company Pension Plan.
(b) All Company Pension Plans intended to be tax- tax qualified have been the subject of determination letters from the Internal Revenue Service with respect to all tax Law changes through the Economic Growth and Tax Relief Reconciliation Act of 2001 with respect to which a determination letter from the Internal Revenue Service can be obtained to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, or require security under Section 307 of ERISA. All Company Pension Plans that are required to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planhave been approved by any non-U.S. Governmental Entity have been so approved.
(c) Except as disclosed set forth in Section 3.11(c) of the Company Disclosure Letter, no neither the Company nor any Commonly Controlled Entity has maintained, contributed to or been obligated to maintain or contribute to, or has any liability under, any Company Benefit Plan that is subject to Title IV of ERISA. With respect to the Maytag Corporation Employees Retirement Plan (the "US Pension Plan hadPlan"), as to the knowledge of the respective last annual valuation Company there has been no material adverse change in the financial condition of such plan from the date of the most recent audited financial statements included in the Filed Company SEC Documents to the date of this Agreement, assuming for each such purpose that there has been no change in the discount rate used for purposes of valuing the liabilities of such plan from the discount rate applied in such financial statements. No liability under Title IV of ERISA (other than for premiums to the Pension Benefit Guaranty Corporation) has been or is expected to be incurred by the Company Pension Planor any Company Subsidiary with respect to any ongoing, an frozen or terminated "unfunded benefit liabilitysingle-employer" plan (as such term is defined in Section 4001(a)(184001(a)(15) of ERISA), based on actuarial assumptions that currently or formerly maintained by any of them or by any Commonly Controlled Entity, except for any such liabilities that, individually or in the aggregate, would not reasonably be expected to have been furnished to Parenta Company Material Adverse Effect. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company, any Company Subsidiary, any officer employee of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISAPlans, including the Company Pension Plans, or any trusts created thereunder or any trustee trustee, administrator or administrator thereofother fiduciary of any Company Benefit Plan or trust created thereunder, or any agents of the foregoing, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would be reasonably expected to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator of any Company Benefit Plan or trust created thereunder to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to the sanctions imposed under Title I of ERISA or to any other liability for breach of fiduciary duty under Section 502(i) ERISA, except for any such prohibited transactions that, individually or 502(1) of ERISAin the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. None of such No Company Benefit Plans and trusts Pension Plan or related trust has been terminatedterminated during the last five years, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) ), other than an event for which the 30-day notice period has been waived, with respect to any Company Benefit Pension Plan during since January 1, 2004, and no notice of a reportable event will be required to be filed in connection with the last five yearsTransactions. Neither the Company nor any Company Subsidiary has incurred any material liability that has not been satisfied in full as a result of a "complete withdrawal" or a "partial withdrawal" (as each such terms are term is defined in Sections 4203 and 4205, respectively, of ERISA) since during the effective date of such Sections 4203 and 4205 with respect to past six years from any "multiemployer pension plan (plan" within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no whether or not subject to ERISA, such Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that or it is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Timeunfunded.
(e) Other than payments or benefits that may be made to the persons listed in Section 3.11(e) of the Company Disclosure Letter (the each, a "Primary Company ExecutivesExecutive"), any no amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger Transactions (alone or in combination with any other Transaction event) by any employee, officer or director of the Company or any of its affiliates Participant who is a "disqualified individual" (as such term is defined in proposed final Treasury Regulation Section 1.280G-1) (each, a "Disqualified Individual") under any employmentCompany Benefit Plan, severance Company Benefit Agreement or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code) and no such Disqualified Individual is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Surviving Corporation or any other person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such Disqualified Individual. The Company has provided Parent with calculations performed in 2004 by Hewitt Associates of the estimated amounts of compensation and benexxxx xhat could be received (whether in cash or property or the vesting of property) by certain Primary Company Executives as a result of a transaction of the nature contemplated by this Agreement (alone or in combination with any other event), and the "base amount" (as defined in Section 280G(b)(3) of the Code) for certain Primary Company Executives, in each case as of the date specified in such calculations and in accordance with the assumptions made by Hewitt Associates as set forth in such calculations. To the knowledxx xx the Company, the Company provided true and complete compensation and benefit information and data to Hewitt Associates necessary to perform such calculations, which infxxxxxxon and data was correct in all material respects as of the date provided by the Company to Hewitt Associates.
(f) None The execution and delivery by thx Xxxxany of this Agreement do not, and the consummation of the Company Benefit Plans Transactions and compliance with the terms hereof will not (either alone or in combination with any other event) (i) is a "multiemployer plan" within entitle any Participant to any additional compensation, severance, termination, change in control or other benefits or any benefits the meaning value of Section 4001(a)(3) which will be calculated on the basis of ERISA any of the Transactions (alone or in combination with any other event), (ii) promises accelerate the time of payment or provides retiree medical vesting or life insurance trigger any payment or funding (through a grantor trust or otherwise) of any compensation, severance or other benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement, or (iii) trigger the forgiveness of indebtedness owed by any Participant to the Company or any person (other than as required by law)of its affiliates.
(g) None Since January 1, 2004, and through the date of this Agreement, neither the Company nor any Company Subsidiary has received notice of, and, to the knowledge of the Company, there are no (i) material pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Company Benefit Plan or Company Benefit Agreement or (ii) pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan or Company Benefit Agreement, except for any such suits, claims, proceedings or investigations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. All contributions, premiums and benefit payments under or in connection with the Company Benefit Plans provides or Company Benefit Agreements that are required to have been made by the Company or any Company Subsidiary have been timely made, accrued or reserved for, except for payment failures to make, accrue or reserve for any such contributions, premiums and benefit payments that, individually or aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(h) Neither the Company nor any Company Subsidiary has any liability or obligations, including under or on account of a benefitCompany Benefit Plan or Company Benefit Agreement, arising out of the hiring of persons to provide services to the Company or any Company Subsidiary and treating such persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary, except for any such liabilities or obligations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(i) The Agreement for the Trust for Maytag Corporation Non-Qualified Deferred Compensation Plans dated as of October 1, 2003 (the "Trust Agreement"), by and between the Company and KeyBank National Association, and each Plan (as such term is defined in the Trust Agreement) has been amended to provide that no funding shall be required in connection with the execution of this Agreement or the consummation of the Transactions. With respect to the Maytag Corporation Supplemental Retirement Plan II, the increase of a benefit amountMaytag Corporation Deferred Compensation Plan II, their predecessor plans and any trust agreements relating to the payment of a contingent benefitbenefits under these plans, or the acceleration of the payment or vesting of a benefit by reason of all necessary actions have been taken to ensure that no funding shall be required in connection with the execution of this Agreement or the consummation of the Transactions.
(hj) Except as disclosed for any items that, individually or in the Company Disclosure Letteraggregate, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is would not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect, (i) all Company Benefit Plans maintained primarily for the benefit of Participants principally employed in jurisdictions other than the United States of America (all such plans, collectively, the "Non-U.S. Benefit Plans") have been maintained in accordance with their terms and all applicable legal requirements, (ii) if any Non-U.S. Benefit Plan is intended to qualify for special tax treatment, such Non-U.S. Benefit Plan meets all requirements for such treatment, and (iii) the fair market value of the assets of each Non-U.S. Benefit Plan required to be funded, the liability of each insurer for any Non-U.S. Benefit Plan required to be funded, and the book reserve established for any Non-U.S. Benefit Plan, together with any accrued contributions, is sufficient to provide for the accrued benefit obligations under each Non-U.S. Benefit Plan.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Filed Company Disclosure Letter contains a list SEC Documents accurately disclose all of the Company's and brief description of all the Company Subsidiaries' "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), . The Company maintains "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) (the "Company EWBPs") and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each with respect to those Company Benefit Plan (orEWBPs which are generally available to the Company's employees, the benefits available under such plans are not materially greater than as would be customary in the case of any unwritten Company Benefit Plan, a description thereof)shipbuilding industry, (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each those Company Benefit Plan (if any EWBPs which provide additional benefits to executive officers of the Company, the Filed Company SEC Documents accurately disclose all of such report was required) plans, and actuarial reports, if any, (iii) the most recent summary plan description for each none of such Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanEWBPs has been amended since May 5, 1999.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan that is subject to the funding requirements set forth in Section 302 of ERISA or Section 412 or 4971 of the Code, had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on reasonable actuarial assumptions that have been furnished to Parentassumptions. None To the knowledge of the Company, none of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None To the knowledge of the Company, none of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None During the previous five years, (i) none of such the Company Benefit Pension Plans and trusts has been terminated, nor has there been any (ii) to the knowledge of the Company, no "reportable event" (as that term is defined in Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan during the last five years. Neither Plan, and (iii) neither the Company nor any Company Subsidiary has incurred contributed to or maintained, or been required to contribute to or maintain, a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), ) and (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeTime except with respect to benefits of not more than 50 individuals who have already retired as of the date of this Agreement.
(e) Other than payments that may be made to the seven persons listed described in the Company Disclosure Letter 1998 SEC Documents as having entered into change of control severance agreements (or agreements having similar effect) with the Company (the "Primary Company Executives")) pursuant to such agreements, any no amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None . The aggregate amount of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance payments and other benefits to any person the Primary Company Executives (other than any "gross-up" for any tax on "excess parachute payments") as required by law).
(g) None a result of the Company Benefit Plans provides for payment Merger or any other Transaction, either alone or in conjunction with any other event (such as termination of a benefitemployment), the increase that could be deemed to be "excess parachute payments" will not exceed $10,000,000. A complete and accurate copy of a benefit amounteach employment, the payment severance, termination or change of a contingent benefit, or the acceleration control agreement with any of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except Primary Company Executives, as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, effect as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating filed as an exhibit to the Company Benefit Plans other 1998 10-K. Other than claims for benefits in the ordinary course.
(k) Neither as are filed as exhibits to the Company 1998 10-K, there are no Company Benefit Plans, nor any Company Subsidiary is party contracts or agreements to a collective bargaining agreement, and no employees of which the Company or any Company Subsidiary are represented by is party, under which any labor organization. To severance, termination or other payment could become payable, or any benefits could become vested or accelerated, or the knowledge funding of the Companywhich could be accelerated, no labor organization to any officer, director, employee or group of employees affiliate of the Company or the Company Subsidiaries as a result of the execution of either of the Transaction Agreements or consummation of any Company Subsidiary has made of the Transactions contemplated by the Transaction Agreements, either alone or in conjunction with any other event such as a pending demand termination of employment. The aggregate amount of severance, termination or similar payments (including any "gross-up" for recognition or certificationtaxes but excluding any lump-sum payments of pension benefits that were vested prior to the execution of this Agreement) that could become payable to officers, directors, and there are no representation affiliates of the Company upon a termination of employment in connection with or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with following the National Labor Relations Board Merger or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company SubsidiaryTransaction does not exceed $20,000,000.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension PlansCOMPANY PENSION PLANS"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and Company Benefit Agreements maintained, or contributed to, by the Company or any Company Subsidiary or to which the Company or any Company Subsidiary is a party, for the benefit of any current or former employees, consultants, officers or directors of the Company or any Company Subsidiary. The Company has made available delivered to Parent Conopco true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Except as disclosed in the Company Disclosure Letter, all Company Pension Plans that are intended to be tax- qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "CODE"), have been the subject of received favorable determination letters from the Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93- 39), to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts. All Company Benefit Plans have been operated in all material respects in accordance with their terms and in substantial compliance with all applicable laws, including ERISA and the Code. There is no material pending or, to the knowledge of the Company, nothing has occurred since threatened litigation relating to the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plans.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary or any entity that is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code contributes or has ever contributed or been obligated to contribute to any "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or to any defined benefit pension plan subject to Title IV of ERISA or to Part 3 of Subpart B of Title I of ERISA. Neither the Company nor any Company Subsidiary, nor to the knowledge of the Company or any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None All contributions and premiums required to be made under the terms of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during as of the last five years. Neither date hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)SEC Documents.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, except as disclosed in the Company Disclosure Letter, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) in all material respects of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. Neither the Company nor any Company Subsidiary has any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(e) Except as disclosed in the Company Disclosure Letter, the consummation of the Offer and the Merger or any of the other Transactions will not (i) entitle any employee, consultant, officer or director of the Company or any Company Subsidiary to severance pay, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit Agreements or (iii) result in any breach or violation of, or a default under, any of the Company Benefit Plans or Company Benefit Agreements.
(f) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company ExecutivesPRIMARY COMPANY EXECUTIVES"), any amount or economic benefit that could be received (whether in cash or property or in respect of the vesting of property) as a result of the Offer and the Merger or any other Transaction (including as a result of termination of employment on or following the Effective Time) by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Plan or Company Benefit Plan currently in effect Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None , and no disqualified individual is entitled to receive any additional payment from the Company or any Company Subsidiary or any other person in the event that the excise tax under Section 4999 of the Company Benefit Plans (i) Code is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed imposed on such disqualified individual. Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Merger and the other Transactions under all Company Benefit Plans and Company Benefit Agreements and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Conopco Inc)
ERISA Compliance; Excess Parachute Payments. (a) The With respect to All Benefit Plans and Agreements, the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension COMPANY PENSION Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiarySubsidiary (determined, for this purpose only, without regard to the exception in ERISA Section 4(b)(4) for plans maintained outside of the United States primarily for the benefit of nonresident aliens). Each Company Benefit Plan has been administered in compliance in all material respects with its terms, applicable Law and any applicable collective bargaining agreement, other than instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has made available to Parent true, true and complete and correct copies of (i1) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii2) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii3) the most recent determination letter (or in the case of a prototype plan, the most recent IRS opinion letter) for each U.S. Benefit Plan and Agreement intended to be qualified under Section 401(a) of the Code, (4) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required required, and (iv5) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.10(a) of the Company Disclosure Letter Schedule contains a list and brief description of all "employee pension benefit plans" (as defined in Company Benefit Plans. Each Company Benefit Plan, other than any such plan that is a “multiemployer plan” within the meaning of Section 3(24001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA")”) (sometimes referred to herein as "a “Company Pension Plans"Multiemployer Plan”), "employee welfare benefit plans" has been administered in compliance with its terms and applicable Law, except for instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. All contributions required to have been made by the Company and the Company Subsidiaries under any Company Benefit Plan have been made by the due date therefor (as defined in Section 3(1) including any extensions). There is no pending or, to the Knowledge of ERISA) and all other the Company, threatened material legal action, suit or claim relating to the Company Benefit Plans maintained, or contributed to, by the Company or (other than routine claims for benefits). Except with respect to any Company Subsidiary for Multiemployer Plan, the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available available, or prior to Parent Closing will make available, to Newco true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof)) and, to the extent applicable: (i) all trust agreements, insurance contracts or other funding arrangements, (ii) the most recent actuarial and trust report for both ERISA funding and financial statement purposes, (iii) the most recent annual report on Form 5500 filed with the Internal Revenue Service (the “IRS”) with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiiiv) the most recent IRS determination letter, (v) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (ivvi) each trust agreement and group annuity contract relating all material communications received from or sent to the IRS, the Pension Benefit Guaranty Corporation or the Department of Labor, (vii) the most recent actuarial study of any pension, disability, post-employment life or medical benefits provided under any such Company Benefit Plan, (viii) all current employee handbooks and manuals and (ix) written statements regarding withdrawal or other multiemployer plan liabilities (or similar liabilities pertaining to any non-U.S. employee benefit plan sponsored by the Company or any Company Subsidiary, if any).
(b) All Except as disclosed in Section 3.10(b) of the Company Disclosure Schedule, all Company Benefits Plans (other than any Company Multiemployer Plan) that are “employee pension benefit plans” (as defined in Section 3(2) of ERISA) (“Company Pension Plans intended to be tax- qualified Plans”) have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes Taxes under Sections 401(a) and 501(a), respectively, of the Internal Revenue Code of 1986, as amended (the “Code”), and no such determination letter has been revoked nor, to the knowledge Knowledge of the Company, has any revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts, to the knowledge in either case in any material respect. Each Company Benefit Plan that is maintained outside of the CompanyUnited States meets the conditions to qualify for tax exempt status, nothing has occurred since the date if applicable, or for such other favorable classification available in respect of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plan under applicable Law.
(c) Except as disclosed in Section 3.10(c) of the Company Disclosure LetterSchedule, no Company Pension Plan (other than any Company Multiemployer Plan) had, as of the respective last annual valuation date for each such Company Pension Plan, an "“unfunded benefit liability" ” (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to ParentNewco. None of the Company Pension Plans (other than any Company Multiemployer Plan) has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None To the Knowledge of the Company, none of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans (other than any Company Multiemployer Plans) which are subject to ERISA, including the Company Pension Plans (other than any Company Multiemployer Plans), any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax Tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISAERISA that could reasonably be expected to have a Company Material Adverse Effect. None of such the Company Benefit Plans (other than any Company Multiemployer Plan) and trusts created thereunder has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years(other than any Company Multiemployer Plan), since April 2, 2005. Neither the Company nor any Company Subsidiary has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Company Multiemployer Plan.
(d) With Except as disclosed in Section 3.10(d) of the Company Disclosure Schedule, with respect to any Company Benefit Plan (other than any Company Multiemployer Plan) that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code Code, except for instances of non-compliance that could not reasonably be expected to result in a Company Material Adverse Effect and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeTime other than liabilities for benefits accrued as of the date of amendment or termination.
(e) Other than payments that may be made to the persons listed Except as disclosed in Section 3.10(e) of the Company Disclosure Letter (Schedule, except for payments to be made pursuant to any plan or agreement filed as an exhibit to any Filed DPC SEC Document and except for matters related to any Company Multiemployer Plan, the "Primary execution and delivery by the Company Executives")of this Agreement do not, the execution and delivery of any amount that could be received (whether in cash or property or other Transaction Agreement to which the vesting of property) as Company is a result party will not, and the consummation of the Merger or and the other Transactions and compliance with the terms hereof and thereof will not, (i) entitle any other Transaction by any current employee, officer or director of the Company or any Company Subsidiary to severance pay, (ii) accelerate the time of its affiliates who is payment or vesting or trigger any payment or funding (through a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1grantor trust or otherwise) under of compensation or benefits under, increase the amount payable or trigger any employmentother material obligation pursuant to, severance or termination agreement, other compensation arrangement any Company Benefit Plan or Company Benefit Plan currently Agreement, (iii) result in effect would not be characterized as any payment or deemed payment that will constitute an "“excess parachute payment" (as defined in ” for purposes of Section 280G(b)(1) 280G or 4999 of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA Code or (iiiv) promises result in any breach or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefitviolation of, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letterdefault under, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing or Company Benefit PlanAgreement.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Doane Pet Care Co)
ERISA Compliance; Excess Parachute Payments. (a) The Company Columbia House Entities Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974ERISA, as amended ("ERISA")whether or not subject thereto) (sometimes referred to herein as "Company Columbia House Entities Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Columbia House Entities Benefit Plans (other than Columbia House Entities Foreign Plans as defined in Section 4.11(g)) maintained, or contributed to, by the Company any Columbia House Entity or any Company Columbia House Subsidiary for the benefit of any current or former employees, officers or directors of the Company any Columbia House Entity or any Company Columbia House Subsidiary. The Company has made available Columbia House Entities have delivered to Parent CDnow true, complete and correct copies of (i) each Company Columbia House Entities Benefit Plan (or, in the case of any unwritten Company Columbia House Entities Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Columbia House Entities Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Columbia House Entities Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Columbia House Entities Benefit Plan.
(b) All Company Except as set forth in the Columbia House Entities Disclosure Letter, each Columbia House Entities Pension Plans Plan that is intended to be tax- qualified have under Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company Columbia House Entities Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyTime Warner and Sony, has revocation been threatened, nor has any such Company Columbia House Entities Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed set forth in the Company Columbia House Entities Disclosure Letter, no Company Columbia House Entities Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded is a defined benefit liability" (as such term is defined in Section 4001(a)(18) plan subject to Title IV of ERISA), based on actuarial assumptions that have been furnished to Parent. No Columbia House Entities Pension Plan is a Multiemployer Plan. None of the Company Columbia House Entities Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the CompanyColumbia House Entities, any Company Columbia House Subsidiary, any Columbia House ERISA Affiliate, any officer of the Company any Columbia House Entity, any Columbia House Subsidiary or any of its Company Subsidiary Columbia House ERISA Affiliate or any of the Company Columbia House Entities Benefit Plans which are subject to ERISA, including the Company Columbia House Entities Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Companyany Columbia House Entity, any Company Subsidiary Columbia House Subsidiary, any Columbia House ERISA Affiliate or any officer of the Company any Columbia House Entity, any Columbia House Subsidiary or any Company Subsidiary Columbia House ERISA Affiliate to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Columbia House Entities Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.there
Appears in 1 contract
Samples: Merger Agreement (Time Warner Inc/)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a)(i) of the Company Disclosure Letter contains a list and brief description of all Company Benefit Plans, including those that are "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), ) and "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) ), and all Company Benefit Agreements. The Company and each Company Benefit Plan, each Company Benefit Agreement effective as of the date of this Agreement, each current or former officer or agent of the Company, and each fiduciary of each Company Benefit Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws with respect to such Company Benefit Plans maintained, or contributed to, by the and Company or any Benefit Agreements. Each Company Subsidiary for the benefit of any current or former employees, officers or directors Benefit Plan and Company Benefit Agreement has been administered in all material respects in compliance with (i) its terms and (ii) all applicable stock exchange rules and regulations. Except as set forth in Section 3.11(a)(ii) of the Company or any Company Subsidiary. The Disclosure Letter, the Company has delivered or made available to Parent true, complete and correct copies of (iA) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof)) other than individual option agreements executed under the 1988 Incentive Plan, the 1996 Incentive Plan or the Director Option Plan that contain terms and conditions that conform to a form of award agreement set forth in the Filed Company SEC Documents, (iiB) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiiC) the most recent summary plan description for each Company Benefit Plan for which such a summary plan description is required and (ivD) each trust agreement and group annuity contract in effect as of the date of this Agreement relating to any Company Benefit Plan. The Company has filed all informational returns with respect to Company Benefit Plans as required under applicable Law, including ERISA and the Code.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes Taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts. There is no material pending or, to the knowledge of the Company, nothing has occurred since threatened, litigation, investigation or dispute relating to any of the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plans.
(c) There are no persons that, together with the Company, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code, and neither the Company nor any person that is treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code has any actual or contingent liability under, related to or concerning any provision of (i) Sections 302, 405, 409 and 601 through 609, inclusive, of ERISA, or Sections 412, 4971, 4975 and 4980B of the Code, or any corresponding or similar provisions of any applicable federal, state, local or non-U.S. Law or (ii) Title IV of ERISA or any corresponding or similar provisions of any applicable federal, state, local or non-U.S. Law. All contributions and premiums required to be made under the terms of any Company Benefit Plan as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed Company SEC Documents.
(d) Except as disclosed set forth in Section 3.11(d) of the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code). The Company has reserved the right under each Company Benefit Plan to amend, (ii) each modify or terminate such Company Benefit Plan that is a "group Plan. The Company has no obligations for retiree health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such life benefits under any Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeBenefit Agreement.
(e) Other than payments that may be made to the persons listed Except as set forth in Section 3.11(e) of the Company Disclosure Letter Letter, the execution and delivery by the Company of this Agreement do not, and the consummation of the Merger and the other Transactions and compliance with the terms hereof will not (i) entitle any current or former director, officer, employee, consultant or independent contractor of the "Primary Company Executives")to severance pay, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(f) No amount or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction (including as a result of termination of employment on or following the Effective Time) by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Agreement or Company Benefit Plan currently in effect or other contractual obligation of the Company would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code)) and no disqualified individual is entitled to receive any additional payment from the Company or any of its affiliates, or to the knowledge of the Company any other person, in the event that the excise tax under Section 4999 of the Code is imposed on such disqualified individual.
(fg) None No amount payable pursuant to the terms of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit Agreements (including by reason of the execution of this Agreement or the consummation Transactions) will be nondeductible under Section 162(m) of the TransactionsCode.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Schedule 3.10(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and Company Benefit Agreements (i) for which the Company has any obligation or liability and (ii) which the Company has maintained, or contributed to, by or to which the Company or any Company Subsidiary is a party, for the benefit of any current or former employees, officers or directors of the Company, which has been as maintained or contributed to by the Company or any Company Subsidiarywithin six years prior to the Effective Time. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement including all amendments thereto (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (v) each employment and consulting agreement to which the Company is a party or is bound.
(b) All Each Company Pension Plans intended to be tax- qualified have been the subject of Plan has received a favorable opinion, advisory, notification or determination letters letter from the Internal Revenue Service to the effect that such Company Pension Plans are Plan (and the underlying prototype or model document) is qualified and exempt from Federal income taxes in form under Sections 401(a) and 501(a), respectively, of the Code, and no such opinion, advisory, notification or determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor except as required to comply with applicable Law or to the knowledge of the Company, has any such Company Pension Plan been amended since the date of its most recent opinion, advisory, notification or determination letter or application therefor in any respect that would materially adversely affect its qualification qualification. The Company has substantially complied with all obligations, whether by operation of law or materially increase its costs andcontract, including reporting and disclosure requirements, relating to the Company Benefit Plans or Company Benefit Agreements. There is no material pending or, to the knowledge of the Company, nothing has occurred since threatened litigation relating to the date Company Benefit Plans. There are no matters, to the knowledge of such letter that could reasonably be expected the Company, pending before the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity with respect to affect the qualified status of such planany Company Benefit Plan.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan that is a defined benefit plan subject to Title IV of ERISA other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on reasonable actuarial assumptions that have been furnished to ParentParent by the actuary for such Company Pension Plan, and there has been no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. None Except for premiums due under Section 4007 of ERISA, no liability under Subtitle C or D of Title IV of ERISA has, in the six years before the Effective Time, been or is expected to be incurred by the Company with respect to any ongoing, frozen or terminated Company Pension Plans has an Plan that is a "accumulated funding deficiencysingle-employer plan," (as such term within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by it, or the single-employer plan of any entity which is defined in considered one employer with the Company under Section 302 4001(b) of ERISA or Section 412 414 of the CodeCode (an "ERISA Affiliate"), whether which has been maintained or not waivedcontributed to by such ERISA Affiliate within six years prior to the Effective Time (an "ERISA Affiliate Pension Plan"). None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or thereunder, or, to the knowledge of the Company, any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject subjects the Company, any Company Subsidiary or any officer of the Company or to any Company Subsidiary to the material tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1502(l) of ERISA. None In the six years before the Effective Time, none of such Company Benefit Plans which are single-employer plans and their corresponding trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Benefit Plan during Plan, and no notice of a reportable event will be required to be filed in connection with the last five yearsMerger. Neither the Company nor any Company Subsidiary ERISA Affiliate has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since during the effective date of such Sections 4203 and 4205 last six years with respect to any multiemployer pension Company Multiemployer Pension Plan or any Multiemployer plan (which has been maintained or contributed to by such ERISA Affiliate within six years prior to the meaning of Section 4001(a)(3Effective Time. As to each Company Multiemployer Pension Plan, Schedule 3.10(c) of ERISAthe Company Disclosure Letter accurately describes the withdrawal liability which would be owed by the Company if the Company ceased contributing thereto as of the Effective Time. All contributions and premiums which are due and payable under the terms of any Company Benefit Plan and the provisions of the Code, ERISA and other applicable law as of the date hereof have been timely made or have been reflected on the most recent balance sheet of the Company furnished to Parent. Neither any Company Pension Plan nor any ERISA Affiliate Pension Plan has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, and all contributions required by Section 302 of ERISA and Section 412 of the Code have been timely made thereto.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies substantially with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Company Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. Except as may be required by Section 4980B(f) of the Code, or applicable state health continuation laws, the Company has no obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(e) The consummation of the Merger will not (x) entitle any employee, officer or director of the Company to severance pay or an election to terminate and receive severance pay, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit Agreements or (z) result in any breach or violation of, or a default under, any of the Company Benefit Plans or Company Benefit Agreements.
(f) Other than payments that may be made to the persons and in the amounts listed in Schedule 3.10(f) of the Company Disclosure Letter Letter, (the "Primary Company Executives"), i) any amount or economic benefit that could be is received or owed (whether in cash or property or the vesting of property) under any Company Benefit Plan or Company Benefit Agreement or otherwise as a result of the Merger or or, to the Company's knowledge, any other Transaction event prior to the Effective Time (including upon, as a result of or in connection with a termination of employment on or following the Effective Time), by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would will not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or , and (ii) promises or provides retiree medical or life insurance benefits no disqualified individual is entitled to receive any person (other than as required by law).
(g) None of the Company Benefit Plans provides for additional payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of from the Company or any other person under any Company Subsidiary are represented by any labor organization. To the knowledge Benefit Plan or Company Benefit Agreement or otherwise as a result of the Company, no labor organization or group of employees Merger in the event that the excise tax under Section 4999 of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company SubsidiaryCode is imposed on such disqualified individual.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Brown Tom Inc /De)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension PlansCOMPANY PENSION PLANS"), all "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans any severance, change in control, deferred compensation, or employment plan, program or agreement, and vacation, incentive, bonus, stock option, stock purchase and restricted stock plan, program, agreement, arrangement or policy entered into, maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of of, or independent contractor with respect to, the Company or any Company SubsidiarySubsidiary (or under which the Company or any Company Subsidiary has any current potential liabilities or obligations) (together with the Company Pension Plans, the "COMPANY BENEFIT PLANS"). The Company has delivered or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service or the U.S. Department of Labor with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan. The Company, each Company Subsidiary, and each Company Benefit Plan and, to the knowledge of the Company, each officer of the Company or a Company Subsidiary is in substantial compliance in all material respects with all applicable provisions of any applicable collective bargaining or other labor agreement, and ERISA, the Code and all other applicable U.S. and non-U.S. laws, rules and regulations relating to any benefits, compensation or employment matters, except where the failure to comply would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No Company Benefit Plan is an employee Stock Purchase Plan which is intended to comply with the requirements of Section 423 of the Code.
(b) All Each U.S. Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, except where the failure to be so qualified or exempt would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or made available to Parent a complete and correct copy of each determination letter from the Internal Revenue Service to the effect that each such Company Pension Plan is qualified and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such . Each non-U.S. Company Pension Plan been amended since that is capable of formal approval or qualification by the date of its most recent determination letter appropriate local tax authorities has obtained such approval or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the CompanyCompany and the Company Subsidiaries, nothing has occurred since the date of such letter that could been done or omitted to be done, and there are no circumstances, which would reasonably be expected to affect result in the qualified status loss of such planapproval or qualification, except where the failure to obtain, or the loss of, such approval or qualification would not individually or in the aggregate reasonably be expected to have a Company Material Adverse Effect.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, except where such deficiency would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, There has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there not been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five yearsyears that would result in a liability that would have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Pension Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed that would result in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to liability that would have a Company Material Adverse Effect.
(d) Set forth in the Company Disclosure Letter is the Company's most recent calculation of the estimated maximum amount that could be paid to each of the persons listed in the Company Disclosure Letter (including all of the employees who are party to an individual agreement with the Company containing change-in-control provisions) as a result of the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect.
Appears in 1 contract
Samples: Merger Agreement (Weyerhaeuser Co)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains includes a complete list and brief description of all "employee pension benefit plans" (material Company Benefit Plans and Company Employment Arrangements as defined in Section 3(2) of the Employee Retirement Income Security Act date of 1974, as amended this Agreement. With respect to each Company Benefit Plan ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in other than a multiemployer plan within the meaning of Section 3(14001(a)(3) of ERISA) and all other Company Benefit Plans maintainedEmployment Arrangement, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available delivered to Parent true, complete and correct copies of (i) each such Company Benefit Plan or Company Employment Arrangement (or, in the case of any unwritten Company Benefit Planplan or arrangement, a description thereof), (ii) the most recent annual report on the applicable Form 5500 series filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) ), including all schedules and actuarial reports, if anyattachments thereto, (iii) the most recent summary plan description for each Company Benefit Plan for which such (if a summary plan description is required required) and all summaries of material modifications thereto, (iv) each trust agreement and agreement, group annuity contract or other funding vehicle relating to any such Company Benefit Plan.
Plan or Company Employment Arrangement, (bv) All Company Pension Plans intended to be tax- qualified have been the subject of most recent actuarial report or valuation relating thereto and (vi) the most recent determination letters from issued by the Internal Revenue Service with respect to the effect Company Benefit Plans that such Company Pension Plans are intended to be qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code ("Qualified Plans") and letters of recognition of exemption with respect to any Company Benefit Plan or related trust that is intended to meet the requirements of Section 501(c)(9) of the Code, and no such determination letter has been revoked nor, .
(b) With respect to the knowledge of Company Benefit Plans and Company Employment Arrangements, individually and in the Companyaggregate, no event has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs occurred and, to the knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company or any Company Subsidiary could be subject to any liability that has had or could reasonably be expected to have a Company Material Adverse Effect (except liability for benefits claims and funding obligations payable in the ordinary course) under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Code or any other applicable law. For purposes of this Section 3.11(b), the term "Company Benefit Plan" shall also include any employee benefit plan within the meaning of Section 3(3) of ERISA that, within the last six years, was sponsored or maintained by any entity which would be treated under Section 414 of the Code as a single employer with the Company or any Company Subsidiary or to which any such entity contributed or was obligated to contribute.
(c) Each Company Benefit Plan and each Company Employment Arrangement has been administered in accordance with its terms except for any failures so to administer any Company Benefit Plan or Company Employment Arrangement as have not had and could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company, all Company Subsidiaries and all the Company Benefit Plans and Company Employment Arrangements are in compliance with the applicable provisions of ERISA, the Code and all other applicable laws and the rules and regulations thereunder and the terms of all applicable collective bargaining agreements, except for any failures to be in such compliance as have not had and could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as disclosed in the Company Disclosure Letter, there are no pending or, to the knowledge of the Company, threatened or anticipated claims under or with respect to any Company Benefit Plan or Company Employment Arrangement by or on behalf of any current or former employee, officer or director, or dependent or beneficiary thereof, or otherwise (other than routine claims for benefits).
(d) Except as disclosed in the Company Disclosure Letter, (i) no current or former employee, officer or director of the Company or any Company Subsidiary will be entitled to any additional rights or benefits or any acceleration of the time of payment or vesting of any benefits under any Company Benefit Plan or Company Employment Arrangement, and no trustee under any "rabbi trust", or similar arrangement maintained in connection with any Company Benefit Plan or Company Employment Arrangement will be entitled to any payment, as a result (either alone or upon the occurrence of any additional or further acts or events) of the execution of this Agreement or the consummation, announcement or other actions relating to the Transactions and (ii) no amount payable to any current or former employee, officer or director of the Company or any Company Subsidiary will fail to be deductible by reason of Section 280G of the Code.
(e) Each Company Benefit Plan intended to be a Qualified Plan has received a favorable determination letter from the Internal Revenue Service that it is so qualified and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plan.
(cf) Except as disclosed in the The aggregate accumulated benefit obligations of each Company Disclosure Letter, no Company Pension Benefit Plan had, subject to Title IV of ERISA (as of the respective last annual date of the most recent actuarial valuation date prepared for each such Company Pension Benefit Plan, an "unfunded benefit liability" ) do not exceed the fair market value of the assets of such plan (as of the date of such term is defined in Section 4001(a)(18valuation).
(g) of ERISA), based on actuarial assumptions that All contributions and other payments required to have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, made for any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of completed historical period by the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" Employment Arrangement (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as pursuant to the terms thereof) have been timely made or paid in full, or, to the extent not required by law).
(g) None to be made or paid for such period, have been reflected in the consolidated financial statements of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the TransactionsCompany.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new no Company Benefit Plan or, except as required by law, is a multiemployer plan within the amendment meaning of an existing Company Benefit Plan.
(iSection 4001(a)(3) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementERISA, and no employees none of the Company or any Company Subsidiary are represented by has, at any labor organizationtime during the last six years, contributed to or been obligated to contribute to any such multiemployer plan. To the knowledge For purposes of the Companyrepresentations and warranties made in the last sentence of Section 3.11(c) and in Sections 3.11(e) and (f), no labor organization or group of employees of the term "Company or Benefit Plan" shall be deemed to exclude any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiarysuch multiemployer plan.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Exchange and Merger (Peco Energy Co)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a complete and accurate list and brief description of all "each Company Benefit Plan that is an “employee pension benefit plans" plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "each, a “Company Pension Plans"Plan”), "each material Company Benefit Plan that is an “employee welfare benefit plans" plan” (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryPlans. The Company has made available provided to Parent true, complete and correct accurate copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit PlanPlans, a description descriptions thereof), (ii) the two most recent annual report reports on Form 5500 required to be filed with the United States Internal Revenue Service (the “IRS”) with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and insurance or group annuity contract relating to any Company Benefit Plan. Each Company Benefit Plan has been administered in all material respects in accordance with its terms. The Company, the Company Subsidiaries and all the Company Benefit Plans are all in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws, including Laws of foreign jurisdictions, and the terms of all collective bargaining agreements. No Company Benefit Plan provides benefits solely to persons who are or were employed, or provide services, outside the United States.
(b) All Company Pension Plans intended to be tax- tax-qualified have been the subject of received favorable determination letters from the Internal Revenue Service IRS to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor(or, to the knowledge of the Company, has revocation been threatened, nor ) and no event has any such Company Pension Plan been amended occurred since the date of its the most recent determination letter or application therefor in relating to any respect such Company Pension Plan that would is reasonably likely to adversely affect its the qualification of such Company Pension Plan or materially increase the costs relating thereto or require security under Section 307 of ERISA. Each Company Pension Plan has complied since its costs andinception, or has been amended to comply with the requirements of the Economic Growth and Tax Relief Reconciliation Act of 2001. All Company Pension Plans required to have been approved by any non-U.S. Governmental Entity have been so approved, no such approval has been revoked (or, to the knowledge of the Company, nothing has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor relating to any such Company Pension Plan is reasonably likely to materially affect any such approval relating thereto or materially increase the costs relating thereto. The Company has delivered to Parent a complete and accurate copy of the most recent determination letter that could reasonably be expected received prior to affect the qualified status date of such planthis Agreement with respect to each Company Pension Plan, as well as a complete and accurate copy of each pending application for a determination letter, if any.
(c) Except as disclosed in Neither the Company Disclosure Letternor any Commonly Controlled Entity has (i) maintained, no contributed to or been required to contribute to any Company Pension Benefit Plan had, as that is subject to Title IV of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" ERISA or (as such term is defined in Section 4001(a)(18ii) any unsatisfied liability under Title IV of ERISA).
(d) All material reports, based on actuarial assumptions that returns and similar documents with respect to all material Company Benefit Plans required to be filed with any Governmental Entity or distributed to any Company Benefit Plan participant have been furnished to Parentduly and timely filed or distributed. None of the Company or any Company Subsidiaries has received written notice of, and to the knowledge of the Company, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), suits, proceedings or other actions against or involving any Company Benefit Plan or asserting any rights or claims to benefits under any Company Benefit Plan that are reasonably likely to give rise to any material liability.
(e) All material contributions, premiums and benefit payments under or in connection with the Company Benefit Plans that are required to have been made as of the date of this Agreement in accordance with the terms of the Company Benefit Plans have been timely made or have been reflected on the most recent consolidated balance sheet included in the Filed Company SEC Documents. Neither any Company Pension Plans Plan nor any single-employer plan of any Commonly Controlled Entity has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the .
(f) With respect to each Company Benefit Plans which are subject to ERISAPlan, including there has not occurred any prohibited transaction (within the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in meaning of Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could is reasonably likely to subject the Company, any Company Subsidiary or any officer of the Company or any of the Company Subsidiary Subsidiaries or any of their respective employees, or a trustee, administrator or other fiduciary of any trust created under any Company Benefit Plan, to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or the sanctions imposed under Title I of ERISA or to any liability for breach of fiduciary duty under Section 502(i) ERISA or 502(1) of ERISAany other applicable Law, except as, individually or in the aggregate, has not had, and is not reasonably likely to have, a Company Material Adverse Effect. None of such No Company Benefit Plans and trusts Plan or related trust has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) for which the 30 day reporting requirement has not been waived with respect to any Company Benefit Plan during the last five years. Neither , and no notice of a reportable event will be required to be filed in connection with the transactions contemplated by the Transaction Agreements, except as, individually or in the aggregate, has not had, and is not reasonably likely to have, a Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Material Adverse Effect.
(dg) With respect to any Section 3.11(g) of the Company Disclosure Letter discloses whether each Company Benefit Plan that is an employee welfare benefit plan, plan is (i) no such Company Benefit Plan is unfunded or self-insured, (ii) funded through a "“welfare benefits benefit fund" (”, as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and or other funding mechanism or (iii) each insured. Each such Company Benefit Plan (including any such Plan covering retirees or other former employees) employee welfare benefit plan may be amended or terminated (including with respect to benefits provided to retirees and other former employees) without material liability (other than benefits then payable under such plan without regard to such amendment or termination) to the Company and the or any Company Subsidiary on or at any time after the Effective Time. Neither the Company nor any Company Subsidiary has any material obligations for retiree health or life insurance benefits under any Company Benefit Plan (other than for continuation coverage required under Section 4980B(f) of the Code), except as, individually or in the aggregate, has not had, and is not reasonably likely to have, a Company Material Adverse Effect.
(eh) Other than payments that may be made None of the execution and delivery of any of the Transaction Agreements, the obtaining of the Company Stockholder Approval or the consummation of the Merger or any other transaction contemplated hereby or thereby (including as a result of any termination of employment on or following the Effective Time) will (i) entitle any current or former director, officer, employee or consultant of the Company or any Company Subsidiary to severance or termination pay, (ii) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(i) Neither the Company nor any Company Subsidiary has any material liability or obligations, including under or on account of a Company Benefit Plan, arising out of the hiring of persons to provide services to the Company or any Company Subsidiary and treating such persons listed as consultants or independent contractors and not as employees of the Company or any Company Subsidiary, except as, individually or in the aggregate, has not had, and is not reasonably likely to have, a Company Disclosure Letter Material Adverse Effect.
(j) No deduction by the "Primary Company Executives"), or any Company Subsidiary in respect of any “applicable employee remuneration” (within the meaning of Section 162(m) of the Code) has been disallowed or is subject to disallowance by reason of Section 162(m) of the Code.
(k) No amount or other entitlement or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the execution and delivery of the Transaction Agreements, the obtaining of the Company Stockholder Approval, the consummation of the Merger or any other Transaction transaction contemplated hereby or thereby (including as a result of termination of employment on or following the Effective Time) by or for the benefit of any employeedirector, officer officer, employee or director consultant of the Company or any of its affiliates Affiliates who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect Plan, Company Benefit Agreement or otherwise would not be characterized as an "“excess parachute payment" ” (as such term is defined in Section 280G(b)(1) of the Code), and no disqualified individual is entitled to receive any additional payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such disqualified individual.
(fl) None Section 3.11(l) of the Company Benefit Plans (i) is Disclosure Letter sets forth a "multiemployer plan" within the meaning complete and accurate list of Section 4001(a)(3) each employment, deferred compensation, consulting, severance, retention, change of ERISA control, termination or (ii) promises or provides retiree medical or life insurance benefits indemnification agreement to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of which the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization is a party or group of employees of is otherwise bound or under which the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiaryliability.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all material "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan, if any.
(b) All Company Benefit Plans are in compliance in all material respects with applicable Law (including, where applicable, the Code and ERISA). All Company Pension Plans which are intended to be tax- tax-qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and their related trusts are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Internal Revenue Code of 1986, as amended (the "Code"), and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any . No such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or qualification, nor has any such Company Pension Plan been amended since December 31, 2001 in any respect that would materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan had, as is a "defined benefit plan" within the meaning of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(183(35) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or is subject to the minimum funding standards of Section 412 of the CodeCode or Section 302 of ERISA, and neither the Company nor any Company Subsidiary has any actual or contingent liability under any defined benefit plan which it (or any affiliate) previously maintained or contributed to (or was obligated to maintain or contribute to), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) all such Company Benefit Plans are unfunded and no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary Subsidiaries on or at any time after the Effective Time, except with respect to contributions, premiums or benefit claims (actual or contingent) with respect to the period from the Effective Time to such termination.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, any other compensation arrangement or any Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed . Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Offer, the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all material "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan, if any.
(b) All Company Benefit Plans are in compliance in all material respects with applicable Law (including, where applicable, the Code and ERISA). All Company Pension Plans which are intended to be tax- tax-qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and their related trusts are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Internal Revenue Code of 1986, as amended (the "Code"), and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any . No such Company Pension Plan has been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or qualification, nor has any such Company Pension Plan been amended since December 31, 2004 in any respect that would materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan had, as is a "defined benefit plan" within the meaning of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(183(35) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or is subject to the minimum funding standards of Section 412 of the CodeCode or Section 302 of ERISA, and neither the Company nor any Company Subsidiary has any actual or contingent liability under any defined benefit plan which it (or any affiliate) previously maintained or contributed to (or was obligated to maintain or contribute to), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, or any trusts created thereunder or any trustee or administrator thereofthereunder, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary Subsidiaries on or at any time after the Effective Time, except with respect to contributions, premiums or benefit claims (actual or contingent) with respect to the period from the Effective Time to such termination.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, any other compensation arrangement or any Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed . Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Offer, the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms Agreement and assuming the Offer and the requirements of all applicable lawMerger occur on or prior to December 31, 2005.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a complete and correct list and brief description of all Company Benefit Plans that are "employee pension benefit plansEMPLOYEE PENSION BENEFIT PLANS" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as all such plans, collectively, the "Company Pension PlansCOMPANY PENSION PLANS"), ) or "employee welfare benefit plansEMPLOYEE WELFARE BENEFIT PLANS" (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintainedPlans; provided, however, that no Company Benefit Agreement shall be deemed a Company Benefit Plan or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors listed in Section 3.11(a) of the Company Disclosure Letter. Each Company Benefit Plan has been administered in compliance with its terms and applicable Law, and the terms of any applicable collective bargaining agreements, except to the extent that the failure to comply with any such terms or any Law, individually or in the aggregate, would not reasonably be expected to have a Company SubsidiaryMaterial Adverse Effect. The Company has delivered or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and each Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service (including accompanying schedules and attachments) with respect to each Company Benefit Plan (if any for which such a report was is required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and under ERISA, (iv) each material trust agreement and material group annuity contract relating to the funding or payment of benefits under any Company Benefit Plan, (v) the most recent determination or qualification letter issued by the Internal Revenue Service for each Company Benefit Plan intended to qualify for favorable tax treatment in the United States of America, as well as a true, correct and complete copy of each pending application for such letter, if applicable, and (vi) the most recent actuarial valuation, if applicable, for each Company Pension Plan.
(b) All Company Pension Plans intended to be tax- tax qualified have been the subject of determination letters from the Internal Revenue Service with respect to all tax Law changes through the Economic Growth and Tax Relief Reconciliation Act of 2001 with respect to which a determination letter from the Internal Revenue Service can be obtained to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, or require security under Section 307 of ERISA. All Company Pension Plans that are required to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planhave been approved by any non-U.S. Governmental Entity have been so approved.
(c) Except as disclosed set forth in Section 3.11(c) of the Company Disclosure Letter, no neither the Company Pension nor any Commonly Controlled Entity has maintained, contributed to or been obligated to maintain or contribute to, or has any liability under, any Company Benefit Plan hadthat is subject to Title IV of ERISA. With respect to the Maytag Corporation Employees Retirement Plan (the "US PENSION PLAN"), as to the knowledge of the respective last annual valuation Company there has been no material adverse change in the financial condition of such plan from the date of the most recent audited financial statements included in the Filed Company SEC Documents to the date of this Agreement, assuming for each such purpose that there has been no change in the discount rate used for purposes of valuing the liabilities of such plan from the discount rate applied in such financial statements. No liability under Title IV of ERISA (other than for premiums to the Pension Benefit Guaranty Corporation) has been or is expected to be incurred by the Company Pension Planor any Company Subsidiary with respect to any ongoing, an frozen or terminated "unfunded benefit liabilitySINGLE-EMPLOYER" plan (as such term is defined in Section 4001(a)(184001(a)(15) of ERISA), based on actuarial assumptions that currently or formerly maintained by any of them or by any Commonly Controlled Entity, except for any such liabilities that, individually or in the aggregate, would not reasonably be expected to have been furnished to Parenta Company Material Adverse Effect. None of the Company Pension Plans has an "accumulated funding deficiencyACCUMULATED FUNDING DEFICIENCY" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company, any Company Subsidiary, any officer employee of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISAPlans, including the Company Pension Plans, or any trusts created thereunder or any trustee trustee, administrator or administrator thereofother fiduciary of any Company Benefit Plan or trust created thereunder, or any agents of the foregoing, has engaged in a "prohibited transactionPROHIBITED TRANSACTION" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would be reasonably expected to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator of any Company Benefit Plan or trust created thereunder to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to the sanctions imposed under Title I of ERISA or to any other liability for breach of fiduciary duty under Section 502(i) ERISA, except for any such prohibited transactions that, individually or 502(1) of ERISAin the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. None of such No Company Benefit Plans and trusts Pension Plan or related trust has been terminatedterminated during the last five years, nor has there been any "reportable eventREPORTABLE EVENT" (as that term is defined in Section 4043 of ERISA) ), other than an event for which the 30-day notice period has been waived, with respect to any Company Benefit Pension Plan during since January 1, 2004, and no notice of a reportable event will be required to be filed in connection with the last five yearsTransactions. Neither the Company nor any Company Subsidiary has incurred any material liability that has not been satisfied in full as a result of a "complete withdrawalCOMPLETE WITHDRAWAL" or a "partial withdrawalPARTIAL WITHDRAWAL" (as each such terms are term is defined in Sections 4203 and 4205, respectively, of ERISA) since during the effective date of such Sections 4203 and 4205 with respect to past six years from any multiemployer pension plan ("MULTIEMPLOYER PLAN" within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no whether or not subject to ERISA, such Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "welfare benefits fundWELFARE BENEFITS FUND" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that or it is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Timeunfunded.
(e) Other than payments or benefits that may be made to the persons listed in Section 3.11(e) of the Company Disclosure Letter (the each, a "Primary Company ExecutivesPRIMARY COMPANY EXECUTIVE"), any no amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger Transactions (alone or in combination with any other Transaction event) by any employee, officer or director of the Company or any of its affiliates Participant who is a "disqualified individualDISQUALIFIED INDIVIDUAL" (as such term is defined in proposed final Treasury Regulation Section 1.280G-1) (each, a "DISQUALIFIED INDIVIDUAL") under any employmentCompany Benefit Plan, severance Company Benefit Agreement or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute paymentEXCESS PARACHUTE PAYMENT" (as defined in Section 280G(b)(1) of the Code) and no such Disqualified Individual is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Surviving Corporation or any other person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such Disqualified Individual. The Company has provided Parent with calculations performed in 2004 by Hewitt Associates of the estimated amounts of compensation and benexxxx xhat could be received (whether in cash or property or the vesting of property) by certain Primary Company Executives as a result of a transaction of the nature contemplated by this Agreement (alone or in combination with any other event), and the "BASE AMOUNT" (as defined in Section 280G(b)(3) of the Code) for certain Primary Company Executives, in each case as of the date specified in such calculations and in accordance with the assumptions made by Hewitt Associates as set forth in such calculations. To the knowledxx xx the Company, the Company provided true and complete compensation and benefit information and data to Hewitt Associates necessary to perform such calculations, which infxxxxxxon and data was correct in all material respects as of the date provided by the Company to Hewitt Associates.
(f) None The execution and delivery by the Xxxxxny of this Agreement do not, and the consummation of the Company Benefit Plans Transactions and compliance with the terms hereof will not (either alone or in combination with any other event) (i) is a "multiemployer plan" within entitle any Participant to any additional compensation, severance, termination, change in control or other benefits or any benefits the meaning value of Section 4001(a)(3) which will be calculated on the basis of ERISA any of the Transactions (alone or in combination with any other event), (ii) promises accelerate the time of payment or provides retiree medical vesting or life insurance trigger any payment or funding (through a grantor trust or otherwise) of any compensation, severance or other benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement, or (iii) trigger the forgiveness of indebtedness owed by any Participant to the Company or any person (other than as required by law)of its affiliates.
(g) None Since January 1, 2004, and through the date of this Agreement, neither the Company nor any Company Subsidiary has received notice of, and, to the knowledge of the Company, there are no (i) material pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Company Benefit Plan or Company Benefit Agreement or (ii) pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan or Company Benefit Agreement, except for any such suits, claims, proceedings or investigations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. All contributions, premiums and benefit payments under or in connection with the Company Benefit Plans provides or Company Benefit Agreements that are required to have been made by the Company or any Company Subsidiary have been timely made, accrued or reserved for, except for payment failures to make, accrue or reserve for any such contributions, premiums and benefit payments that, individually or aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(h) Neither the Company nor any Company Subsidiary has any liability or obligations, including under or on account of a benefitCompany Benefit Plan or Company Benefit Agreement, arising out of the hiring of persons to provide services to the Company or any Company Subsidiary and treating such persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary, except for any such liabilities or obligations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(i) The Agreement for the Trust for Maytag Corporation Non-Qualified Deferred Compensation Plans dated as of October 1, 2003 (the "TRUST AGREEMENT"), by and between the Company and KeyBank National Association, and each Plan (as such term is defined in the Trust Agreement) has been amended to provide that no funding shall be required in connection with the execution of this Agreement or the consummation of the Transactions. With respect to the Maytag Corporation Supplemental Retirement Plan II, the increase of a benefit amountMaytag Corporation Deferred Compensation Plan II, their predecessor plans and any trust agreements relating to the payment of a contingent benefitbenefits under these plans, or the acceleration of the payment or vesting of a benefit by reason of all necessary actions have been taken to ensure that no funding shall be required in connection with the execution of this Agreement or the consummation of the Transactions.
(hj) Except as disclosed for any items that, individually or in the Company Disclosure Letteraggregate, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is would not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect, (i) all Company Benefit Plans maintained primarily for the benefit of Participants principally employed in jurisdictions other than the United States of America (all such plans, collectively, the "NON-U.S. BENEFIT PLANS") have been maintained in accordance with their terms and all applicable legal requirements, (ii) if any Non-U.S. Benefit Plan is intended to qualify for special tax treatment, such Non-U.S. Benefit Plan meets all requirements for such treatment, and (iii) the fair market value of the assets of each Non-U.S. Benefit Plan required to be funded, the liability of each insurer for any Non-U.S. Benefit Plan required to be funded, and the book reserve established for any Non-U.S. Benefit Plan, together with any accrued contributions, is sufficient to provide for the accrued benefit obligations under each Non-U.S. Benefit Plan.
Appears in 1 contract
Samples: Merger Agreement (Maytag Corp)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.12(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined Company Benefit Plans. Each Company Benefit Plan has been administered in Section 3(2) of compliance with its terms, the Employee Retirement Income Security Act of 1974Code, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) ERISA and all other applicable Laws, other than instances of noncompliance that, individually or in the aggregate, would not reasonably be expected to have a Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryMaterial Adverse Effect. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and agreement, group annuity contract or other funding mechanism (including insurance contracts) relating to any Company Benefit Plan.
(b) All Each Company Pension Plans Plan and related trust intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes Taxes under Sections 401(a) and 501(a), respectively, of the Code, has either (1) been the subject of a current, favorable determination letter (or, in the case of a standardized form plan, a favorable opinion letter) from the Internal Revenue Service covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter to the effect that such Company Pension Plan or trust is qualified and exempt from federal income Taxes, and no such determination letter (or opinion letter) has been revoked nor, to the knowledge of the Company’s knowledge, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to adversely affect the qualified status its qualification; or (2) still has a remaining period of time in which to apply for or receive such planletter and to make any amendments necessary to obtain a favorable determination.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary Subsidiary, or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminatedERISA that would, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives")aggregate, any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
(d) No plan currently or ever in the past maintained, sponsored, contributed to or required to be contributed to by the Company, any Company Subsidiary, or any of their respective current or former Company ERISA Affiliates is or ever in the past was (1) a “multiemployer plan” as defined in Section 3(37) of ERISA, (2) a plan described in Section 413 of the Code, (3) a plan subject to Title IV of ERISA, (4) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (5) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. The term “Company ERISA Affiliate” means any person that, together with the Company or any Company Subsidiary, would be deemed a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Authentec Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a complete and correct list and brief description of all Company Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as all such plans, collectively, the "Company Pension PlansCOMPANY PENSION PLANS"), ) or "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans; PROVIDED, HOWEVER, that no Company Benefit Agreement shall be deemed a Company Benefit Plan or listed in Section 3.11(a) of the Company Disclosure Letter; PROVIDED FURTHER, HOWEVER, that Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary maintained primarily for the benefit of any current or former employeesParticipants principally employed in jurisdictions other than the United States of America (all such plans, officers or directors collectively, the "NON-U.S. BENEFIT PLANS") are not listed in Section 3.11(a) of the Company Disclosure Letter (but a list of such Non-U.S. Benefit Plans shall be provided to Parent within 20 days following the date of this Agreement). Each Company Benefit Plan has been administered in compliance with its terms and applicable Law, and the terms of any applicable collective bargaining agreements, except to the extent that the failure to comply with any such terms or any Law, individually or in the aggregate, would not reasonably be expected to have a Company SubsidiaryMaterial Adverse Effect. The Company has delivered or made available (or, with respect to Non-U.S. Benefit Plans and Non-U.S. Benefit Agreements, shall deliver or make available within 20 days following the date of this Agreement) to Parent true, complete and correct copies of (i) each Company Benefit Plan and each Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service (including accompanying schedules and attachments) with respect to each Company Benefit Plan (if any for which such a report was is required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and under ERISA, (iv) each material trust agreement and material group annuity contract relating to the funding or payment of benefits under any Company Benefit Plan, (v) the most recent determination or qualification letter issued by the Internal Revenue Service for each Company Benefit Plan intended to qualify for favorable tax treatment in the United States of America, as well as a true, correct and complete copy of each pending application for such letter, if applicable, and (vi) the most recent actuarial valuation, if applicable, for each Company Pension Plan.
(b) All Company Pension Plans intended to be tax- tax qualified have been the subject of determination letters from the Internal Revenue Service with respect to all tax Law changes through the Economic Growth and Tax Relief Reconciliation Act of 2001 with respect to which a determination letter from the Internal Revenue Service can be obtained to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andor require security under Section 307 of ERISA. All Company Pension Plans that are required to have been approved by any non-U.S. Governmental Entity have been so approved.
(c) Neither the Company nor any Commonly Controlled Entity has maintained, contributed to or been obligated to maintain or contribute to, or has any liability under, any Company Benefit Plan that is subject to Title IV of ERISA. With respect to the Maytag Corporation Employees Retirement Plan (the "US PENSION PLAN"), to the knowledge of the Company, nothing Company there has occurred since been no material adverse change in the financial conditions of such plan from the date of the most recent audited financial statements included in the Filed Company SEC Documents to the date of this Agreement, assuming for such letter purpose that could reasonably be there has been no change in the discount rate used for purposes of valuing the liabilities of such plan from the discount rate applied in such financial statements. No liability under Title IV of ERISA (other than for premiums to the Pension Benefit Guaranty Corporation) has been or is expected to affect the qualified status of such plan.
(c) Except as disclosed in be incurred by the Company Disclosure Letteror any Company Subsidiary with respect to any ongoing, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an frozen or terminated "unfunded benefit liabilitysingle-employer" plan (as such term is defined in Section 4001(a)(184001(a)(15) of ERISA), based on actuarial assumptions that currently or formerly maintained by any of them or by any Commonly Controlled Entity, except for any such liabilities that, individually or in the aggregate, would not reasonably be expected to have been furnished to Parenta Company Material Adverse Effect. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company, any Company Subsidiary, any officer employee of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISAPlans, including the Company Pension Plans, or any trusts created thereunder or any trustee trustee, administrator or administrator thereofother fiduciary of any Company Benefit Plan or trust created thereunder, or any agents of the foregoing, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would be reasonably expected to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator of any Company Benefit Plan or trust created thereunder to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to the sanctions imposed under Title I of ERISA or to any other liability for breach of fiduciary duty under Section 502(i) ERISA, except for any such prohibited transactions that, individually or 502(1) of ERISAin the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. None of such No Company Benefit Plans and trusts Pension Plan or related trust has been terminatedterminated during the last five years, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) ), other than an event for which the 30-day notice period has been waived, with respect to any Company Benefit Pension Plan during since January 1, 2004, and no notice of a reportable event will be required to be filed in connection with the last five yearstransactions contemplated hereby. Neither the Company nor any Company Subsidiary has incurred any material liability that has not been satisfied in full as a result of a "complete withdrawal" or a "partial withdrawal" (as each such terms are term is defined in Sections 4203 and 4205, respectively, of ERISA) since during the effective date of such Sections 4203 and 4205 with respect to past six years from any "multiemployer pension plan (plan" within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no whether or not subject to ERISA, such Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that or it is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Timeunfunded.
(e) Other than payments or benefits that may be made to the persons listed in Section 3.11(e) of the Company Disclosure Letter (the each, a "Primary Company ExecutivesPRIMARY COMPANY EXECUTIVE"), any no amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger Transactions (alone or in combination with any other Transaction event) by any employee, officer or director of the Company or any of its affiliates Participant who is a "disqualified individual" (as such term is defined in proposed final Treasury Regulation Section 1.280G-1) (each, a "DISQUALIFIED INDIVIDUAL") under any employmentCompany Benefit Plan, severance Company Benefit Agreement or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code) and no such Disqualified Individual is entitled to receive any additional payment (E.G., any tax gross-up or any other payment) from the Company, the Surviving Corporation or any other person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such Disqualified Individual. The Company has provided Parent with calculations performed in 2004 by Hewitt Associates of the estimated amounts of compensation and bxxxxxxs that could be received (whether in cash or property or the vesting of property) by certain Primary Company Executives as a result of a transaction of the nature contemplated by this Agreement (alone or in combination with any other event), and the "base amount" (as defined in Section 280G(b)(3) of the Code) for certain Primary Company Executives, in each case as of the date specified in such calculations and in accordance with the assumptions made by Hewitt Associates as set forth in such calculations. To the knowxxxxx of the Company, the Company provided true and complete compensation and benefit information and data to Hewitt Associates necessary to perform such calculations, which xxxxxxation and data was correct in all material respects as of the date provided by the Company to Hewitt Associates.
(f) None The execution and delivery by xxx Xxmpany of this Agreement do not, and the consummation of the Company Benefit Plans Transactions and compliance with the terms hereof will not (either alone or in combination with any other event) (i) is a "multiemployer plan" within entitle any Participant to any additional compensation, severance, termination, change in control or other benefits or any benefits the meaning value of Section 4001(a)(3) which will be calculated on the basis of ERISA any of the Transactions (alone or in combination with any other event), (ii) promises accelerate the time of payment or provides retiree medical vesting or life insurance trigger any payment or funding (through a grantor trust or otherwise) of any compensation, severance or other benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement, or (iii) trigger the forgiveness of indebtedness owed by any Participant to the Company or any person (other than as required by law)of its affiliates.
(g) None of Since January 1, 2004, and through the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution date of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure LetterAgreement, neither the Company nor any Company Subsidiary has an obligation received notice of, and, to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, there are no labor organization (i) material pending termination proceedings or group of employees other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Company Subsidiary has made a Benefit Plan or Company Benefit Agreement or (ii) pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any investigations (other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(lthan routine inquiries) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with by any Governmental Entity with respect to any Company Benefit Plan or arbitrator based onCompany Benefit Agreement, arising out ofexcept for any such suits, claims, proceedings or investigations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. All contributions, premiums and benefit payments under or in connection with, with the Company Benefit Plans or otherwise relating Company Benefit Agreements that are required to the employment or termination of employment of any individual have been made by the Company or any Company Subsidiary whichhave been timely made, if resolved against the Company accrued or reserved for, except for failures to make, accrue or reserve for any Company Subsidiarysuch contributions, as the case may bepremiums and benefit payments that, could individually or aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(h) Neither the Company nor any Company Subsidiary has any liability or obligations, including under or on account of a Company Benefit Plan or Company Benefit Agreement, arising out of the hiring of persons to provide services to the Company or any Company Subsidiary and treating such persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary, except for any such liabilities or obligations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(i) The Agreement for the Trust for Maytag Corporation Non-Qualified Deferred Compensation Plans dated as of October 1, 2003 (the "TRUST Agreement"), by and between the Company and KeyBank National Association, and each Plan (as such term is defined in the Trust Agreement) has been amended to provide that no funding shall be required in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby.
(j) Except for any items that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) all Non-U.S. Benefit Plans have been maintained in accordance with their terms and all applicable legal requirements, (ii) if any Non-U.S. Benefit Plan is intended to qualify for special tax treatment, such Non-U.S. Benefit Plan meets all requirements for such treatment, and (iii) the fair market value of the assets of each Non-U.S. Benefit Plan required to be funded, the liability of each insurer for any Non-U.S. Benefit Plan required to be funded, and the book reserve established for any Non-U.S. Benefit Plan, together with any accrued contributions, is sufficient to provide for the accrued benefit obligations under each Non-U.S. Benefit Plan.
Appears in 1 contract
Samples: Merger Agreement (Maytag Corp)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension PlansCOMPANY PENSION PLANS"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and Company Benefit Agreements maintained, or contributed to, by the Company or any Company Subsidiary, or to which the Company or any Company Subsidiary is a party, for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit Plan, Plan or Company Benefit Agreement a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Except as disclosed in the Company Disclosure Letter, all Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39), to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the CodeInternal Revenue Code of 1986, as amended (the "CODE"), and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts. There is no material pending or, to the knowledge of the Company, nothing has occurred since threatened litigation relating to the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plans.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan, other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "COMPANY MULTIEMPLOYER PENSION PLAN"), had, as of the respective last annual valuation date for each such Company Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, and there has been no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. None No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the Company Pension Plans has an or any Company Subsidiary with respect to any ongoing, frozen or terminated "accumulated funding deficiency" (as such term single-employer plan", within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is defined in considered one employer with the Company under Section 302 4001 of ERISA or Section 412 414 of the CodeCode (an "ERISA AFFILIATE"), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator administra tor thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Transactions. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension Company Multiemployer Pension Plan. All contributions and premiums required to be made under the terms of any Company Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed Company SEC Documents. Neither any Company Pension Plan nor any single-employer plan of an ERISA Affiliate has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, except as disclosed in the Company Disclosure Letter, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. Neither the Company nor any Company Subsidiary has any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(e) Except as disclosed in the Company Disclosure Letter, the consummation of the Offer, the Merger or any other Transaction will not (x) entitle any employee, officer or director of the Company or any Company Subsidiary to severance pay, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit Agreements other than pursuant to the provisions of Section 6.04 hereof or (z) result in any breach or violation of, or a default under, any of the Company Benefit Plans or Company Benefit Agreements.
(f) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company ExecutivesPRIMARY COMPANY EXECUTIVES"), any amount or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction (including as a result of termination of employment on or following the Effective Time) by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Plan or Company Benefit Plan currently in effect Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section Sec tion 280G(b)(1) of the Code).
(f) None , and no disqualified individual is entitled to receive any additional payment from the Company or any Company Subsidiary or any other person in the event that the excise tax under Section 4999 of the Company Benefit Plans (i) Code is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed imposed on such disqualified individual. Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Offer, the Merger and the other Transactions under all Company Benefit Plans and Company Benefit Agreements and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Tripoint Global Communications Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all material "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension PlansCOMPANY PENSION PLANS"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan, if any.
(b) All Company Benefit Plans are in compliance in all material respects with applicable Law (including, where applicable, the Code and ERISA). All Company Pension Plans which are intended to be tax- tax-qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and their related trusts are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the CodeInternal Revenue Code of 1986, as amended (the "CODE"), and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any . No such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or qualification, nor has any such Company Pension Plan been amended since December 31, 1998 in any respect that would materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan had, as is a "defined benefit plan" within the meaning of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(183(35) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or is subject to the minimum funding standards of Section 412 of the CodeCode or Section 302 of ERISA, and neither the Company nor any Company Subsidiary has any actual or contingent liability under any defined benefit plan which it (or any affiliate) previously maintained or contributed to (or was obligated to maintain or contribute to), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) all such Company Benefit Plans are unfunded and no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary Subsidiaries on or at any time after the Effective Time, except with respect to contributions, premiums or benefit claims (actual or contingent) with respect to the period from the Effective Time to such termination.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company ExecutivesPRIMARY COMPANY EXECUTIVES"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, any other compensation arrangement or any Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed . Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Offer, the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.this
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), ----- --------------------- "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and Company Benefit Agreements maintained, or contributed to, by the Company or any ERISA Affiliate of the Company Subsidiary or to which the Company or any ERISA Affiliate of the Company is a party or may have any liability, for the benefit of any current or former employees, officers or directors or consultants of the Company or any Company SubsidiaryERISA Affiliate of the Company. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (v) each employment agreement to which the Company is a party or is bound.
(b) All Except as set forth in Section 3.11(b) of the Company Disclosure Letter, all Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service Service, to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor is there any basis for any such revocation, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts. There is no material pending or, to the knowledge of the Company, nothing threatened litigation relating to the Company Benefit Plans. Each Company Benefit Plan has occurred since been maintained in compliance with its terms and with the date of such letter that could reasonably be expected requirements prescribed by all applicable laws, including but not limited to affect ERISA and the qualified status of such planCode, which are applicable thereto.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan subject to Title IV of ERISA had, as of the respective last annual valuation date for each such Company Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, and there has been no material adverse change in the financial condition of any such Company Pension Plan since its last such annual valuation date. None No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the Company Pension Plans has an with respect to any ongoing, frozen or terminated "accumulated funding deficiencysingle-employer plan," (as such term is defined in within the meaning of Section 302 4001(a)(15) of ERISA, currently or formerly maintained by it, or any ERISA or Section 412 of the Code), whether or not waivedAffiliate. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Transactions. Neither No Company Benefit Plan is a multiemployer plan, within the meaning of Section 4001(a)(3) of ERISA, and the Company nor any Company Subsidiary has not incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect 4205. All contributions and premiums required to be made under the terms of any multiemployer pension Company Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent balance sheet filed or incorporated by reference in the Filed Company SEC Documents. Neither any Company Pension Plan nor any single-employer plan of an ERISA Affiliate has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Company Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. The Company has no obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(e) Other than payments that may be made Except as disclosed in Section 3.11(e) of the Company Disclosure Letter, the consummation of the Offer, the Merger or any other Transaction will not (i) entitle any employee, officer or director of the Company to severance pay or an election to terminate and receive severance pay, (ii) accelerate the persons listed time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit Agreements or (iii) result in any breach or violation of, or a default under, any of the Company Benefit Plans or Company Benefit Agreements. Section 3.11(e) of the Company Disclosure Letter sets forth the only payments to which participants in the Company's Phantom Working Interest Incentive Plan (the "Primary Company ExecutivesPWIIP")) will be entitled as a result of the Offer, the Merger or any Transaction.
(f) No amount or economic benefit that could be received (whether in cash or property or the vesting of property) under any Company Benefit Plan or Company Benefit Agreement or otherwise as a result of the Merger Offer, the Merger, any Transaction or any other Transaction event (including upon, as a result of or in connection with a termination of employment on or following the Effective Time) by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury ----------------------- Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not will be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None . The payments and estimated value of benefit continuation that could be provided to disqualified individuals as a result of the Company Benefit Plans Offer, the Merger, any Transaction or any other event (iincluding upon, as a result of or in connection with a termination of employment on or following the Effective Time) is a "multiemployer plan" within the meaning of are listed on Section 4001(a)(33.11(f) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The -------------------------------------------- Company Disclosure Letter contains includes a complete list and brief description of all "employee pension benefit plans" (material Company Benefit Plans and Company Employment Arrangements as defined in Section 3(2) of the Employee Retirement Income Security Act date of 1974, as amended this Agreement. With respect to each Company Benefit Plan ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in other than a multiemployer plan within the meaning of Section 3(14001(a)(3) of ERISA) and all other Company Benefit Plans maintainedEmployment Arrangement, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available delivered to Parent true, complete and correct copies of (i) each such Company Benefit Plan or Company Employment Arrangement (or, in the case of any unwritten Company Benefit Planplan or arrangement, a description thereof), (ii) the most recent annual report on the applicable Form 5500 series filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) ), including all schedules and actuarial reports, if anyattachments thereto, (iii) the most recent summary plan description for each Company Benefit Plan for which such (if a summary plan description is required required) and all summaries of material modifications thereto, (iv) each trust agreement and agreement, group annuity contract or other funding vehicle relating to any such Company Benefit Plan.
Plan or Company Employment Arrangement, (bv) All Company Pension Plans intended to be tax- qualified have been the subject of most recent actuarial report or valuation relating thereto and (vi) the most recent determination letters from issued by the Internal Revenue Service with respect to the effect Company Benefit Plans that such Company Pension Plans are intended to be qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code ("Qualified Plans") --------------- and letters of recognition of exemption with respect to any Company Benefit Plan or related trust that is intended to meet the requirements of Section 501(c)(9) of the Code, and no such determination letter has been revoked nor, .
(b) With respect to the knowledge of Company Benefit Plans and Company Employment Arrangements, individually and in the Companyaggregate, no event has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs occurred and, to the knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company or any Company Subsidiary could be subject to any liability that has had or could reasonably be expected to have a Company Material Adverse Effect (except liability for benefits claims and funding obligations payable in the ordinary course) under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Code or any other applicable law. For purposes of ----- this Section 3.11(b), the term "Company Benefit Plan" shall also include any employee benefit plan within the meaning of Section 3(3) of ERISA that, within the last six years, was sponsored or maintained by any entity which would be treated under Section 414 of the Code as a single employer with the Company or any Company Subsidiary or to which any such entity contributed or was obligated to contribute.
(c) Each Company Benefit Plan and each Company Employment Arrangement has been administered in accordance with its terms except for any failures so to administer any Company Benefit Plan or Company Employment Arrangement as have not had and could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company, all Company Subsidiaries and all the Company Benefit Plans and Company Employment Arrangements are in compliance with the applicable provisions of ERISA, the Code and all other applicable laws and the rules and regulations thereunder and the terms of all applicable collective bargaining agreements, except for any failures to be in such compliance as have not had and could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as disclosed in the Company Disclosure Letter, there are no pending or, to the knowledge of the Company, threatened or anticipated claims under or with respect to any Company Benefit Plan or Company Employment Arrangement by or on behalf of any current or former employee, officer or director, or dependent or beneficiary thereof, or otherwise (other than routine claims for benefits).
(d) Except as disclosed in the Company Disclosure Letter, (i) no current or former employee, officer or director of the Company or any Company Subsidiary will be entitled to any additional rights or benefits or any acceleration of the time of payment or vesting of any benefits under any Company Benefit Plan or Company Employment Arrangement, and no trustee under any "rabbi trust", or similar arrangement maintained in connection with any Company Benefit Plan or Company Employment Arrangement will be entitled to any payment, as a result (either alone or upon the occurrence of any additional or further acts or events) of the execution of this Agreement or the consummation, announcement or other actions relating to the Transactions and (ii) no amount payable to any current or former employee, officer or director of the Company or any Company Subsidiary will fail to be deductible by reason of Section 280G of the Code.
(e) Each Company Benefit Plan intended to be a Qualified Plan has received a favorable determination letter from the Internal Revenue Service that it is so qualified and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plan.
(cf) Except as disclosed in the The aggregate accumulated benefit obligations of each Company Disclosure Letter, no Company Pension Benefit Plan had, subject to Title IV of ERISA (as of the respective last annual date of the most recent actuarial valuation date prepared for each such Company Pension Benefit Plan, an "unfunded benefit liability" ) do not exceed the fair market value of the assets of such plan (as of the date of such term is defined in Section 4001(a)(18valuation).
(g) of ERISA), based on actuarial assumptions that All contributions and other payments required to have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, made for any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of completed historical period by the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" Employment Arrangement (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as pursuant to the terms thereof) have been timely made or paid in full, or, to the extent not required by law).
(g) None to be made or paid for such period, have been reflected in the consolidated financial statements of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the TransactionsCompany.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new no Company Benefit Plan or, except as required by law, is a multiemployer plan within the amendment meaning of an existing Company Benefit Plan.
(iSection 4001(a)(3) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementERISA, and no employees none of the Company or any Company Subsidiary are represented by has, at any labor organizationtime during the last six years, contributed to or been obligated to contribute to any such multiemployer plan. To the knowledge For purposes of the Companyrepresentations and warranties made in the last sentence of Section 3.11(c) and in Sections 3.11(e) and (f), no labor organization or group of employees of the term "Company or Benefit Plan" shall be deemed to exclude any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiarysuch multiemployer plan.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Exchange and Merger (Commonwealth Edison Co)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and Company Benefit Agreements maintained, or contributed to, by the Company or any to which the Company Subsidiary is a party, for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCompany. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (v) each employment agreement to which the Company is a party or is bound.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39), to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would materially adversely affect its qualification or materially increase its costs andcosts. There is no material pending or, to the knowledge of the Company, nothing has occurred since threatened litigation relating to the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plans.
(c) Except as disclosed in the No Company Disclosure LetterPension Plan, no other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, and there has been no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. None No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the Company Pension Plans has an with respect to any ongoing, frozen or terminated "accumulated funding deficiencysingle-employer plan," (as such term within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by it, or the single-employer plan of any entity which is defined in considered one employer with the Company under Section 302 4001 of ERISA or Section 412 414 of the CodeCode (an "ERISA Affiliate"), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Transactions. Neither the The Company nor any Company Subsidiary has not incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension Company Multiemployer Pension Plan. All contributions and premiums required to be made under the terms of any Company Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent balance sheet filed or incorporated by reference in the Filed Company SEC Documents. Neither any Company Pension Plan nor any single-employer plan of an ERISA Affiliate has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Company Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. The Company has no obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(e) Except as disclosed in Section 3.11(e) of the Company Disclosure Letter, the consummation of the Offer, the Merger or any other Transaction will not (x) entitle any employee, officer or director of the Company to severance pay or an election to terminate and receive severance pay, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit 18 Agreements or (z) result in any breach or violation of, or a default under, any of the Company Benefit Plans or Company Benefit Agreements.
(f) Other than payments that may be made to the persons listed in Section 3.11(f) of the Company Disclosure Letter (the "Primary Company Executives"), (i) any amount or economic benefit that could be received (whether in cash or property or the vesting of property) under any Company Benefit Plan or Company Benefit Agreement or otherwise as a result of the Merger Offer, the Merger, any Transaction or any other Transaction event (including upon, as a result of or in connection with a termination of employment on or following the Effective Time) by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or , and (ii) promises or provides retiree medical or life insurance benefits no disqualified individual is entitled to receive any person (other than as required by law).
(g) None of the Company Benefit Plans provides for additional payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of from the Company or any Company Subsidiary are represented by any labor organization. To other person in the knowledge event that the excise tax under Section 4999 of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company SubsidiaryCode is imposed on such disqualified individual.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company -------------------------------------------- Parent Disclosure Letter contains includes a complete list and brief description of all "employee pension benefit plans" (material Parent Benefit Plans and Parent Employment Arrangements as defined in Section 3(2) of the Employee Retirement Income Security Act date of 1974, as amended this Agreement. With respect to each Parent Benefit Plan ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in other than a multiemployer plan within the meaning of Section 3(14001(a)(3) of ERISA) and all other Company Benefit Plans maintainedParent Employment Arrangement, or contributed to, by Parent has delivered to the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company such Parent Benefit Plan or Parent Employment Arrangement (or, in the case of any unwritten Company Benefit Planplan or arrangement, a description thereof), (ii) the most recent annual report on the applicable Form 5500 series filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) ), including all schedules and actuarial reports, if anyattachments thereto, (iii) the most recent summary plan description for each Company Benefit Plan for which such (if a summary plan description is required required) and all summaries of material modifications thereto, (iv) each trust agreement and agreement, group annuity contract or other funding vehicle relating to any Company such Parent Benefit PlanPlan or Parent Employment Arrangement, (v) the most recent actuarial report or valuation relating thereto and (vi) the most recent determination letters issued by the Internal Revenue Service with respect to Parent Benefit Plans that are intended to be Qualified Plans and letters of recognition of exemption with respect to any Parent Benefit Plan or related trust that is intended to meet the requirements of Section 501(c)(9) of the Code.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service With respect to the effect that such Company Pension Parent Benefit Plans are qualified and exempt from Federal income taxes under Sections 401(a) Parent Employment Arrangements, individually and 501(a)in the aggregate, respectively, of the Code, and no such determination letter event has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs occurred and, to the knowledge of Parent, there exists no condition or set of circumstances, in connection with which Parent or any Parent Subsidiary could be subject to any liability that has had or could reasonably be expected to have a Parent Material Adverse Effect (except liability for benefits claims and funding obligations payable in the Companyordinary course) under ERISA, the Code or any other applicable law. For purposes of this Section 4.11(b), the term "Parent Benefit Plan" shall also include any employee benefit plan within the meaning of Section 3(3) of ERISA that, within the last six years, was sponsored or maintained by any entity which would be treated under Section 414 of the Code as a single employer with Parent or any Parent Subsidiary or to which any such entity contributed or was obligated to contribute.
(c) Each Parent Benefit Plan and each Parent Employment Arrangement has been administered in accordance with its terms except for any failures so to administer any Parent Benefit Plan or Parent Employment Arrangement as have not had and could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Parent, all Parent Subsidiaries and all the Parent Benefit Plans and Parent Employment Arrangements are in compliance with the applicable provisions of ERISA, the Code and all other applicable laws and the rules and regulations thereunder and the terms of all applicable collective bargaining agreements, except for any failures to be in such compliance as have not had and could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Except as disclosed in the Parent Disclosure Letter, there are no pending or, to the knowledge of Parent, threatened or anticipated claims under or with respect to any Parent Benefit Plan or Parent Employment Arrangement by or on behalf of any current or former employee, officer or director, or dependent or beneficiary thereof, or otherwise (other than routine claims for benefits).
(d) Except as disclosed in the Parent Disclosure Letter, (i) no current or former employee, officer or director of Parent or any Parent Subsidiary will be entitled to any additional rights or benefits or any acceleration of the time of payment or vesting of any benefits under any Parent Benefit Plan or Parent Employment Arrangement, and no trustee under any "rabbi trust", or similar arrangement maintained in connection with any Parent Benefit Plan or Parent Employment Arrangement will be entitled to any payment, as a result (either alone or upon the occurrence of any additional or further acts or events) of the execution of this Agreement or the consummation, announcement or other actions relating to the Transactions and (ii) no amount payable to any current or former employee, officer or director of Parent or any Parent Subsidiary will fail to be deductible by reason of Section 280G of the Code.
(e) Each Parent Benefit Plan intended to be a Qualified Plan has received a favorable determination letter from the Internal Revenue Service that it is so qualified and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Parent Benefit Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None The aggregate accumulated benefit obligations of each Parent Benefit Plan subject to Title IV of ERISA (as of the Company date of the most recent actuarial valuation prepared for such Parent Benefit Plans Plan) do not exceed the fair market value of the assets of such plan (i) is a "multiemployer plan" within as of the meaning date of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by lawsuch valuation).
(g) None All contributions and other payments required to have been made for any completed historical period by Parent or any Parent Subsidiary to any Parent Benefit Plan or Parent Employment Arrangement (or to any person pursuant to the terms thereof) have been timely made or paid in full, or, to the extent not required to be made or paid for such period, have been reflected in the consolidated financial statements of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the TransactionsParent.
(h) Except as disclosed in the Company Parent Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company no Parent Benefit Plan oris a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA, except as required by lawand none of Parent or any Parent Subsidiary has, at any time during the last six years, contributed to or been obligated to contribute to any such multiemployer plan. For purposes of the representations and warranties made in the last sentence of Section 4.11(c) and in Sections 4.11 (e) and (f), the amendment of an existing Company term "Parent Benefit Plan" shall be deemed to exclude any such multiemployer plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Exchange and Merger (Commonwealth Edison Co)
ERISA Compliance; Excess Parachute Payments. (a) The With respect to All Benefit Plans and Agreements, the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension PlansCOMPANY PENSION PLANS"), "employee welfare benefit ----- --------------------- plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiarySubsidiary (determined, for this purpose only, without regard to the exception in ERISA Section 4(b)(4) for plans maintained outside of the United States primarily for the benefit of nonresident aliens). Each Company Benefit Plan has been administered in compliance in all material respects with its terms, applicable Law and any applicable collective bargaining agreement, other than instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has made available to Parent true, true and complete and correct copies of (i1) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii2) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii3) the most recent determination letter (or in the case of a prototype plan, the most recent IRS opinion letter) for each U.S. Benefit Plan and Agreement intended to be qualified under Section 401(a) of the Code, (4) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required required, and (iv5) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Company Pension With respect to any U.S. Benefit Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a)Agreements, respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except except as disclosed in the Company Disclosure LetterLetter or in the Company SEC Documents, no Company Pension Plan, other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "COMPANY MULTIEMPLOYER PENSION PLAN"), had, as of the respective last ---------------------------------- annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None Each U.S. Benefit Plan and Agreement that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service (or in the case of a prototype plan, the most recent IRS opinion letter) to that effect and each such plan complies in all material respects in form and in operation with the requirements of the Code and meets the requirements of a "qualified plan" under Section 401(a) of the Code. To the Company's knowledge, no event has occurred or circumstances exist that will or could give rise to disqualification or loss of tax-exempt status of any such plan or agreement. To the Company's knowledge, none of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or or, any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, or any fiduciary, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA). None of such Company Benefit Plans and trusts has been terminated, nor to the Company's knowledge has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within Company Multiemployer Pension Plan during the meaning of Section 4001(a)(3) of ERISA)last five years.
(dc) With respect to any Company U.S. Benefit Plan Plans and Agreements that is an are employee welfare benefit planplans, (i) except as disclosed in the Company Disclosure Letter, no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) and each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) materially complies with the applicable requirements of Section 4980B(f) of the Code Code, except in such instances in which noncompliance, individually and (iii) each such in the aggregate, would not reasonably be expected to have a Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeMaterial Adverse Effect.
(ed) Other With respect to U.S. Benefit Plans and Agreements, other than payments that may be made to the persons Persons listed in the Company Disclosure Letter (or disclosed in the "Primary Company Executives")SEC Documents, any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(fe) None of With respect to All Benefit Plans and Agreements, except as disclosed in the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA Disclosure Letter or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of in the Company Benefit Plans provides for payment of a benefitSEC Documents, the increase of a benefit amount, execution and delivery by the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution Company of this Agreement or do not, and the consummation of the TransactionsMerger and the other Transactions and compliance with the terms hereof will not, (1) entitle any employee, officer or director of the Company or any Company Subsidiary to severance pay, (2) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement or (3) result in any breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(hf) Except With respect to All Benefit Plans and Agreements, except as disclosed in the Company Disclosure Letter, neither (1) other than routine claims for benefits submitted by or on behalf of participants or beneficiaries (including alternate payees in connection with qualified domestic relations orders as defined in Section 414(p) of the Code), no claim, legal proceeding or investigation by a Governmental Entity is pending, or to the Company's knowledge, is threatened, (2) the Company nor any and each Company Subsidiary has an obligation to adopt any new have made all contributions due under each Company Benefit Plan orand each Company Benefit Agreement as of the date of this Agreement in accordance with local Law and past practice, except (3) the liabilities of the Company and each Company Subsidiary as required by lawof the date of this Agreement have been appropriately reflected in all material respects on the relevant financial statements in accordance with local Law, past practice, and generally accepted accounting principles in each jurisdiction, and (4) to the extent a separate trust or other funding vehicle has been established to fund the liabilities under a Company Benefit Plan or Company Benefit Agreement, the amendment actuarially determined fair market value of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letterall accrued benefits does not exceed, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As fair market value of the date of this Agreementassets in such trust or funding vehicle, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits determined using assumptions and actuarial principles consistent with local Law and past practice in the ordinary courseeach jurisdiction.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, consultants, officers or directors of the Company or any Company Subsidiary. The Company has delivered or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan and (v) the most recent United States Internal Revenue Service determination letter received with respect to any Company Pension Plan.
(b) All Except as disclosed in the Filed Company SEC Documents, all Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a501(l), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been operated or amended since the date of its most recent determination letter or application therefor in any respect that would be reasonably likely to adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planqualification.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 Title IV of ERISA or Section 412 of the Code), whether or not waived, and the Company and the Company Subsidiaries have no other contingent liabilities under Title IV of ERISA. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax taxes or penalty penalties on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, except as disclosed in Section 3.11(d) of the Company Disclosure Letter, (i) no such Company Benefit Plan has any obligations that have not been accrued in accordance with GAAP or is unfunded or uninsured or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), as applicable, (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each no such Company Benefit Plan (including any such Plan covering retirees or other former employees) obligates the Company or any Company Subsidiary to provide coverage to former employees, officers or directors except as may be amended required under Part 6 of Title I of ERISA or terminated without material liability to similar statute and at the Company sole expense of the participant and the Company Subsidiary on or at any time after the Effective Timeparticipant's beneficiary (except for administrative expenses).
(e) Other than payments that may be made The Company Benefit Plans and Company Benefit Agreements have been operated and administered in all material respects in accordance with their terms and applicable Law, and there are no pending, or to the persons listed knowledge of the Company, threatened, suits, audits, examinations, actions or claims (other than benefit claims incurred in the ordinary course) with respect to any Company Benefit Plan or Company Benefit Agreement, and all contributions and payments thereunder have been timely and properly made (or otherwise properly accrued if not yet due) in all material respects.
(f) Except as disclosed in Section 3.11(f) of the Company Disclosure Letter Letter, the execution and delivery by the Company of this Agreement do not, and the consummation of the Merger and the other Transactions and compliance with the terms hereof will not (i) entitle any employee, officer or director of the "Primary Company Executives")or any Company Subsidiary to severance pay, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any amount Company Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(g) There are no amounts that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Agreement or Company Benefit Plan currently in effect that would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Genus Inc)
ERISA Compliance; Excess Parachute Payments. (ai) The Section 3.01(m) of the Company Disclosure Letter Schedule contains a true, complete and correct list and brief description of all Company Benefit Plans, including each "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as a "Company Pension PlansPlan"), and "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) ), and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryAgreements. The Company has made available to Parent true, complete and correct copies of (iA) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (iiB) the most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiiC) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (ivD) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (E) the most recent Internal Revenue Service determination letter for each Company Pension Plan intended to be tax-qualified under Section 401(a) of the Code.
(bii) Each Company Benefit Plan has been administered in all material respects in accordance with its terms. The Company, its subsidiaries and each Company Benefit Plan are in compliance in all material respects with the applicable provisions of ERISA and the Code, and all other domestic or foreign (whether national, federal, state, provincial, local or otherwise) laws. There is no pending or, to the knowledge of the Company, threatened, suit, claim (other than claims for benefits in the ordinary course of business), action, investigation or proceeding relating to Company Benefit Plans.
(iii) All Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39), to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has any such revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andor require security under Section 307 of ERISA. No Company Pension Plan, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), ) based on actuarial assumptions that have been furnished to Parent. None , and, as of the date of this Agreement, there has been no material adverse change in the financial condition of any Company Pension Plans Plan since its last such annual valuation date.
(iv) No material liability under Subtitle C or D of Title IV of ERISA has an been or is reasonably expected to be incurred by the Company or any of its subsidiaries with respect to any ongoing, frozen or terminated "accumulated funding deficiencysingle- employer plan" (as such term is defined in within the meaning of Section 302 4001(a)(15) of ERISA ERISA) currently or Section 412 formerly maintained by any of them, or the Code), whether or not waivedsingle-employer plan of any Commonly Controlled Entity. None of the Company, any Company Subsidiaryof its subsidiaries, any officer of the Company or any of its Company Subsidiary or subsidiaries, any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, or any trusts created thereunder or any trustee or administrator thereof, thereof has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other material breach of fiduciary responsibility that could subject the Company, any Company Subsidiary of its subsidiaries or any officer of the Company or any Company Subsidiary of its subsidiaries to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived, with respect to any Company Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with this Agreement, the Merger or any other transaction contemplated hereby. Neither the Company nor any Company Subsidiary of its subsidiaries has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension Company Multiemployer Pension Plan. All contributions and premiums required to be made under the terms of any Company Benefit Plan as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company Filed SEC Documents. Neither any Company Pension Plan nor any single-employer plan of any Commonly Controlled Entity has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(dv) With respect to any each Company Benefit Plan that is an employee welfare benefit plan, (iA) no such Company Benefit Plan is unfunded or not funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), (iiB) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iiiC) each such Company Benefit Plan (including any such Plan plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeTime without the imposition individually or in the aggregate of any material liability on the Company or any of its subsidiaries. Neither the Company nor any of its subsidiaries has any obligations for retiree health or life benefits under any Company Benefit Plan or Company Benefit Agreement.
(evi) Neither the execution and delivery of this Agreement by the Company nor the obtaining of the Stockholder Approval nor the consummation of the Merger or any other transaction contemplated by this Agreement will (A) entitle any current or former director, officer, employee or consultant of the Company or any of its subsidiaries to severance pay, (B) except pursuant to the Company Stock Plans which provide for Company Stock Options, accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement or (C) result in any breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(vii) Other than payments that may be made to the persons listed in Section 3.01(m)(vii) of the Company Disclosure Letter (the "Primary Company Executives")Schedule, any amount or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the execution and delivery of this Agreement by the Company, the obtaining of the Stockholder Approval or the consummation of the Merger or any other Transaction transaction contemplated by this Agreement (including as a result of termination of employment on or following the Effective Time) by any employeecurrent or former director, officer officer, employee or director consultant of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Plan or Company Benefit Plan currently in effect Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section Sec tion 280G(b)(1) of the Code).
(f, and no disqualified individual is entitled to receive any additional payment from the Company or any of its subsidiaries or any other person in the event that the excise tax under Section 4999 of the Code is imposed on such disqualified individual. Set forth in Section 3.01(m)(vii) None of the Company Benefit Plans Disclosure Schedule is the "base amount" (i) is a "multiemployer plan" within the meaning of as defined in Section 4001(a)(3280G(b)(3) of ERISA or (iithe Code) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this AgreementAgreement for each person listed in Section 3.01(m)(vii) of the Company Disclosure Schedule.
(viii) The Company and its subsidiaries do not have any material liability or obligations, each including under or pursuant to any Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As or Company Benefit Agreement, arising out of the date hiring of this Agreement, the Company is not aware of any material claims relating persons to provide services to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor or any Company Subsidiary is party to a collective bargaining agreement, of its subsidiaries and no treating such persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiaryits subsidiaries.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11 of the Company Disclosure Letter contains a complete and correct list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other each Material Company Benefit Plans maintainedPlan and Material Company Benefit Agreement. Each Material Company Benefit Plan and Material Company Benefit Agreement has been administered in all material respects in substantial compliance with its terms and applicable Law, or contributed to, by and the Company or any Company Subsidiary for the benefit terms of any current or former employees, officers or directors of the Company or any Company Subsidiaryapplicable collective bargaining agreements. The Company has delivered or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, or in the case of any unwritten Material Company Benefit PlanPlan or Material Company Benefit Agreement, a description thereof)) of (i) each Material Company Benefit Plan and Material Company Benefit Agreement, (ii) the two most recent annual report on Form 5500 reports required to be filed, or such similar reports, statements, information returns or material correspondence filed with the Internal Revenue Service or delivered to any Governmental Entity, with respect to each Material Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description for each Material Company Benefit Plan for which such a summary plan description is required and under applicable U.S. Law, (iv) each trust agreement and group annuity contract and other material documents relating to the funding or payment of benefits under any Material Company Benefit Plan, (v) the most recent determination or qualification letter issued by any Governmental Entity for each Material Company Pension Plan intended to qualify for favorable tax treatment, as well as a true, correct and complete copy of each pending application for a determination or qualification letter, if applicable, and a complete and correct list of all material amendments to any Material Company Pension Plan as to which a favorable determination letter has not yet been received and (vi) the two most recent actuarial valuations for each Material Company Benefit Plan for which such valuations are required. All Participant data necessary to administer each Material Company Benefit Plan and each Material Company Benefit Agreement is in the possession of the Company and is in form that is sufficient for the proper administration of the Material Company Benefit Plans and Material Company Benefit Agreements in accordance with their terms and applicable Laws and such data is complete and correct in all material respects.
(b) All Material Company Pension Plans intended to be tax- tax qualified have been the subject of determination letters from the Internal Revenue Service with respect to all Tax Law changes with respect to which a determination letter from the Internal Revenue Service can be obtained to the effect that such Material Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge Knowledge of the Company, has revocation been threatened, nor has any such Material Company Pension Plan been amended or failed to be amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, or require security under Section 307 of ERISA. All Material Company Pension Plans that are required to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planhave been approved by any non-U.S. Governmental Entity have been so approved.
(c) Except as disclosed in Neither the Company Disclosure Letternor any other Person or entity that, no together with the Company or any Company Subsidiary, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or any other applicable Law (a “Commonly Controlled Entity”) (i) has sponsored, maintained or contributed to, or been obligated to maintain or contribute to, or has any liability under, any Material Company Pension Plan that is subject to Title IV of ERISA or Section 412 of the Code or is otherwise a defined benefit pension plan or (ii) has any unsatisfied liability under Title IV of ERISA or Section 412 of the Code. No Material Company Pension Plan, other than any Material Company Pension Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”), had, as of the respective last annual valuation date for each such Material Company Pension Plan, an "“unfunded benefit liability" ” (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have and there has been furnished no material adverse change in the financial condition of any Material Company Pension Plan since its last such annual valuation date. No liability under Title IV of ERISA or Section 412 of the Code (other than for premiums to Parentthe Pension Benefit Guaranty Corporation) has been or is expected to be incurred by the Company or any Company Subsidiary with respect to any ongoing, frozen or terminated “single-employer” plan (as defined in Section 4001(a)(15) of ERISA), currently or formerly maintained by any of them or by any Commonly Controlled Entity. None of the Material Company Pension Plans has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company, any Company Subsidiary, any officer employee of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISAPlans, including the Company Pension Plans, or any trusts created thereunder or any trustee trustee, administrator or administrator thereofother fiduciary of any Company Benefit Plan or trust created thereunder, or any agents of the foregoing, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would be reasonably expected to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans, or, to the Knowledge of the Company, any trusts created thereunder or any trustee or administrator of any Company Benefit Plan or trust created thereunder to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to the sanctions imposed under Title I of ERISA or to any other liability for breach of fiduciary duty under Section 502(iERISA or any other applicable law to the extent any such tax, penalty or other liability could reasonably be expected to result in a material liability of the Company and the Company Subsidiaries, taken as a whole. Except as could not reasonably be expected to result in a material liability of the Company and the Company Subsidiaries, taken as a whole, (i) no Company Pension Plan or 502(1) of ERISA. None of such Company Benefit Plans and trusts related trust has been terminatedterminated during the last five years, nor (ii) there has there been any "no “reportable event" ” (as that term is defined in Section 4043 of ERISA) ), other than an event for which the 30-day notice period has been waived, with respect to any Material Company Benefit Pension Plan during since January 1, 2004, and (iii) no notice of a reportable event will be required to be filed in connection with the last five yearstransactions contemplated hereby. Neither the Company nor any Company Subsidiary nor any Commonly Controlled Entity has incurred any material liability that has not been satisfied in full as a "result of a “complete withdrawal" ” or a "“partial withdrawal" ” (as each such terms are term is defined in Sections 4203 and 4205, respectively, of ERISA) since during the effective date of such Sections 4203 and 4205 with respect to past six years from any multiemployer pension plan (material Company Multiemployer Pension Plan within the meaning of Section 4001(a)(3) of ERISA)ERISA to the extent any such tax or penalty could reasonably be expected to result in a material liability of the Company and the Company Subsidiaries, taken as a whole.
(d) With Except as could not result in a material liability of the Company and the Company Subsidiaries, taken as a whole, with respect to any Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no each such Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code)) or is unfunded, (ii) each no such Company Benefit Plan that provides benefits after termination of employment, except where the cost thereof is a "group health plan" borne entirely by the former employee (or his eligible dependents or beneficiaries) or as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of required by Section 4980B(f) of the Code Code, and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the or any Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed No amount or other entitlement currently in the Company Disclosure Letter (the "Primary Company Executives"), any amount effect that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger Transactions (alone or in combination with any other Transaction event) by any employee, officer or director Person identified on Section 3.11(e) of the Company or any of its affiliates Disclosure Letter who is a "“disqualified individual" ” (as such term is defined in proposed final Treasury Regulation Section 1.280G-1) under any employment(each, severance or termination agreement, other compensation arrangement or a “Disqualified Individual”) with respect to the Company Benefit Plan currently in effect would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code)) and no such Disqualified Individual or any other Person is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Surviving Corporation or any other Person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such Disqualified Individual or any other Person. Set forth in Section 3.11(e)—Exhibit A of the Company Disclosure Letter is a complete and correct list of (i) the estimated maximum amount that could be received (whether in cash or property or the vesting of property) by each Disqualified Individual as a result of the Transactions (alone or in combination with any other event) and (ii) the “base amount” (as defined in Section 280G(b)(3) of the Code) for each Disqualified Individual calculated as of January 1, 2007. No Person is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Surviving Corporation or any other Person in the event that the additional tax required by Section 409A of the Code is imposed on a Person.
(f) None Except as could not result in a material liability of the Company Benefit Plans and the Company Subsidiaries, taken as a whole, the execution and delivery by the Company of this Agreement do not, and the consummation of the Transactions and compliance with the terms hereof will not (either alone or in combination with any other event) (i) is a "multiemployer plan" within entitle any Employee to any additional compensation, severance, termination, change in control or other benefits or any benefits the meaning value of Section 4001(a)(3) which will be calculated on the basis of ERISA any of the Transactions (alone or in combination with any other event), (ii) promises accelerate the time of payment or provides retiree medical vesting or life insurance trigger any payment or funding (through a grantor trust or otherwise) of any compensation, severance or other benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement, (iii) trigger the forgiveness of indebtedness owed by any Employee to the Company or any person of its Affiliates or (other than as required by law)iv) result in any breach or violation of, or a default (with or without the lapse of time or the giving of notice, or both) under, any Company Benefit Plan or Company Benefit Agreement.
(g) None of Since January 1, 2004 and through the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution date of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure LetterAgreement, neither the Company nor any Company Subsidiary has an obligation received notice of, and, to adopt the Knowledge of the Company, there are no (i) material pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against or involving or asserting any new rights or claims to benefits under any Company Benefit Plan or, except as required by law, the amendment of an existing or Company Benefit Plan.
Agreement or (iii) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan has been operated or Company Benefit Agreement, except for any such suits, claims, proceedings or investigations that, individually or in all the aggregate, could not reasonably be expected to result in a material respects in accordance with its terms liability of the Company and the requirements of all applicable law.
(j) As of the date of this AgreementCompany Subsidiaries, the Company is not aware of any material claims relating to taken as a whole. All contributions, premiums and benefit payments under or in connection with the Company Benefit Plans other than claims or Company Benefit Agreements that are required to have been made by the Company or any Company Subsidiary have been timely made, accrued or reserved for, except where failures to make, accrue or reserve for benefits any such contributions, premiums and benefit payments that, individually or aggregate, could not reasonably be expected to result in a material liability of the ordinary courseCompany and the Company Subsidiaries, taken as a whole.
(kh) Neither the Company nor any Company Subsidiary is party has any liability or obligations, including under or on account of a Company Benefit Plan or Company Benefit Agreement, arising out of the hiring of Persons to a collective bargaining agreement, and no employees of provide services to the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization and treating such Persons as consultants or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, independent contractors and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, not as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges except for any such liabilities or claims against obligations that, individually or in the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may beaggregate, could not reasonably be expected to result in a material liability of the Company and the Company Subsidiaries, taken as a whole.
(i) (A) All Material Company Benefit Plans maintained primarily for the benefit of Participants principally employed in jurisdictions other than the United States of America (the “Material Non-U.S. Benefit Plans”) and Material Company Benefits Agreements maintained primarily for the benefit of Employees principally employed in jurisdictions other than the United States of America have been maintained in all material respects in accordance with their terms and all applicable legal requirements, (B) if any Material Non-U.S. Benefit Plan is intended to qualify for special tax treatment, such Material Non-U.S. Benefit Plan meets all requirements to the extent necessary to obtain such treatment, and (C) the fair market value of the assets of each Material Non-U.S. Benefit Plan required to be funded, the liability of each insurer for any Material Non-U.S. Benefit Plan required to be funded, and the book reserve established for any Material Non-U.S. Benefit Plan, together with any accrued contributions, is sufficient to provide for the accrued benefit obligations under each Material Non-U.S. Benefit Plan. Neither the Company nor any Company Subsidiary is or has (x) a Company Material Adverse Effectdebt that is or has become due under section 75 of the Pensions Xxx 0000; (y) been a party to an act or deliberate failure to act (or knowingly assisted) to prevent the recovery of any amount of debt due under section 75 of the Pensions Xxx 0000; or (z) is or has been an associate of or connected with (as set out in sections 38 and 51 of the Pensions Act 2004) any Person who is an employer in relation to any occupational pension scheme other than the Company’s Pension Scheme, Fifteenth Deed of Amendment, dated as of June 20, 1997 (as amended).
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employeesCompany Participant. Each Company Benefit Plan (other than Company Multiemployer Pension Plans), officers or directors and, to the knowledge of the Company, each Company or Multiemployer Pension Plan has been administered in material compliance with its terms and applicable Law, and the terms of any Company Subsidiaryapplicable collective bargaining agreements. The Company has delivered or made available available, or will as soon as practicable following the date hereof deliver or make available, to Parent true, complete and correct copies of (i) each Company Benefit Plan required to be listed on Section 3.11(a) of the Company Disclosure Letter (or, in the case of any unwritten Company Benefit PlanPlans, a description written descriptions thereof), (ii) the two most recent annual report on Form 5500 reports required to be filed, or such similar reports, statements, information returns or material correspondence filed with the Internal Revenue Service or delivered to any Governmental Entity, with respect to each Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description prepared for each Company Benefit Plan for which such summary plan description is required and Plan, (iv) each trust agreement and group annuity contract and other documents relating to the funding or payment of benefits under any Company Benefit Plan.
, (bv) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination or qualification letter or application therefor in issued by any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date Governmental Entity for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred intended to qualify for favorable tax treatment, as well as a "true, correct and complete withdrawal" or copy of each pending application for a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205determination letter, respectivelyif applicable, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iiivi) the two most recent actuarial valuations for each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 4.12(a) of the Company Disclosure Letter Schedule contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(13(l) of ERISA) (sometimes referred to herein as "Company Welfare Plans") and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary Commonly Controlled Entity for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCommonly Controlled Entity. The Company has provided or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan except for any Company Benefit Plan that is a "Company Multiemployer Pension Plan" (as defined below) and each Company Welfare Plan except for any Company Welfare Plan that is a "Multiemployer Plan" as defined in Section 3(3) of ERISA (a "Company Multiemployer Welfare Plan") (or, in the case of any such unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan which is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan which is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan, (v) all rulings, determination letters, no-action letters or advisory opinions from the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental body that pertain to any Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan and open requests therefor, (vi) the most recent actuarial and financial reports (audited and/or unaudited) with respect to each Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan for the most recently completed year, (vii) all registration statements filed, and all related prospectuses, with respect to any Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan, and (viii) all contracts with third party administrators, actuaries, investment managers, consultants, and other independent contractors that related to any Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan.
(b) All Except as set forth in Section 4.12(b) of the Company Disclosure Schedule, each Company Pension Plans intended to be tax- qualified have Plan that is not a "Company Multiemployer Pension Plan" (as defined below) has been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.taxes
Appears in 1 contract
Samples: Merger Agreement (Urs Corp /New/)
ERISA Compliance; Excess Parachute Payments. (a) The Section 4.12 of the Company Disclosure Letter Schedule contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent Buyer true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Except as disclosed in Section 4.12 of the Company Disclosure Schedule, all Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.determination
(c) Except as disclosed in Section 4.12 of the Company Disclosure LetterSchedule, no Company Pension Plan, other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to ParentBuyer. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. With respect to any Pension Plan subject to Title IV of ERISA, the Company has not incurred any material liability to such Company Pension Plan or to the Pension Benefit Guaranty Corporation, other than for the payment of premiums, all of which have been paid when due. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" event (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within of the meaning of Section 4001(a)(3) of ERISA)Company Multiemployer Pension Plans. The Company has not received any notification to the effect that any Company Multiemployer Pension Plan is in reorganization or is insolvent.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, except as disclosed in Section 4.12 of the Company Disclosure Schedule, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.without
(e) Except as listed in Section 4.12 of the Company Disclosure Schedule, no employee of the Company or any Company Subsidiary will be entitled to any additional benefits or any acceleration of the time of payment or vesting of any benefits under any Company Benefit Plan as a result of the Transactions. Other than payments that may be made to the persons listed in the Company Disclosure Letter Schedule (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None . Set forth in Section 4.12 of the Company Benefit Plans Disclosure Schedule is (i) is the estimated maximum amount that could be paid to each Primary Company Executive as a "multiemployer plan" within result of the meaning of Section 4001(a)(3) of ERISA or Offer, the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect and (ii) promises or provides retiree medical or life insurance benefits to any person the "base amount" (other than as required by law).
(gdefined in Section 280G(b)(3) None of the Code) for each Primary Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Emap PLC)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintainedmaintained or contributed to, or required to be maintained or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, consultants, officers or directors of the Company or any Company Subsidiary. Each Company Benefit Plan has been administered in compliance with its terms and applicable Law, other than instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has made available delivered to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description brief summary of the material terms thereof), (ii) each Company Benefit Agreement required to be listed on Section 3.10 or Section 3.17 of the Company Disclosure Letter (or, in the case of any unwritten Company Benefit Agreement, a brief summary of the material terms thereof), (iii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiiiv) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (ivv) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (vi) the most recent actuarial valuation report for each Company Benefit Plan for which such actuarial valuation report was required or prepared. Notwithstanding the foregoing, in the case of any special severance agreements, indemnification agreements or agreements concerning duties, the Company has delivered to Parent the form of agreement and any forms of amendment thereto, and no special severance agreement, indemnification agreement or agreement concerning duties required to be listed on Section 3.10 or Section 3.17 of the Company Disclosure Letter contains terms that are inconsistent in any material respect with the applicable forms that were delivered to Parent.
(b) All Company Pension Plans that are intended to be tax- qualified meet the requirements of Section 401(a) or Section 501(a) of the Internal Revenue code of 1986, as amended (the "Code"), have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andcosts. The Company has delivered to Parent a true, to the knowledge correct and complete copy of the Companymost recent determination letter with respect to each Company Pension Plan that is intended to meet the requirements of Section 401(a) or Section 501(a) of the Code, nothing has occurred since the date as well as a true, correct and complete copy of such letter that could reasonably be expected to affect the qualified status of such planeach pending application for a determination letter, if any.
(c) Except as disclosed in the No Company Disclosure LetterPension Plan, no other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to ParentParent and there has been no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. Except where any such liabilities, individually and in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, no liability under Title IV of ERISA has been or is expected to be incurred by the Company or any Company Subsidiary with respect to any ongoing, frozen or terminated "single-employer" plan (as such term is defined in Section 4001(a)(15) of ERISA), currently or formerly maintained by any of them, or the single-employer plan of any Company Commonly Controlled Entity. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator thereof, has engaged in a material "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator thereof to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISAERISA or to any other liability for breach of fiduciary duty under ERISA or any other applicable Law. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither None of the Company nor Company, any Company Subsidiary or any Company Commonly Controlled Entity has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Pension Plan.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, plan (i) no such Company Benefit Plan is unfunded or unfunded, funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.a
Appears in 1 contract
Samples: Merger Agreement (Roto-Rooter Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 2.15(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies list of (i) each material Company Benefit Plan (or, in the case of any unwritten and material Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Agreement. Each material Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each material Company Benefit Plan for which such summary plan description is required Agreement has been administered in compliance with its terms and (iv) each trust agreement applicable Law and group annuity contract relating to the terms of any Company Benefit Planapplicable collective bargaining agreements.
(b) All The Company Pension Plans intended to be tax- qualified have been the subject of has received determination letters from the Internal Revenue Service for all Company Pension Plans intended to be tax qualified to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or are in the form of a prototype plan that is the subject of a favorable opinion letter from the Internal Revenue Service, and no such determination or opinion letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended or failed to be amended since the date of its most recent determination or opinion letter or application therefor therefore in any respect that would materially adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in Neither the Company Disclosure Letternor any other trade or business that, no together with the Company or any Company Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code (a “Commonly Controlled Entity”) has any liability under, any Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term that is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 Title IV of ERISA or Section 412 of the Code), whether Code or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in is otherwise a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer benefit pension plan (within the meaning of Section 4001(a)(3) of ERISA)plan.
(d) With respect to any material Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no each such material Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), ) or is unfunded and (ii) each no such material Company Benefit Plan that provides benefits after termination of employment, except where the cost thereof is a "group health plan" borne entirely by the former employee (or his eligible dependents or beneficiaries) or as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of required by Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeCode.
(e) Other than payments that may be made Neither the execution nor delivery of this Agreement, nor the consummation of the Transaction, the Restructuring or the other transactions contemplated hereby will (i) entitle any Employees to any severance pay or increase in severance pay, (ii) accelerate the persons listed time of payment or vesting of, increase the amount payable of, or result in the payment, funding or other material obligation to provide, compensation or benefits under any Company Disclosure Letter Benefit Plan or Company Benefit Agreement, nor (the "Primary Company Executives"), iii) result in any amount that could be received payment (whether in cash or property or the vesting of property) as a result of the Merger or to any other Transaction by any employee, officer or director of the Company or any of its affiliates person who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment(each, severance or termination agreement, other compensation arrangement or a “Disqualified Individual”) with respect to the Company Benefit Plan currently in effect which would not be characterized as deemed to be an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code)) and no such Disqualified Individual is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Reorganized Company, any Company Subsidiary in the event that the excise tax required by Section 4999(a) of the Code is imposed on such Disqualified Individual. No person is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Reorganized Company, any Company Subsidiary or any other person in the event that the additional tax required by Section 409A of the Code is imposed on a person.
(f) None No Company Benefit Plan, Company Benefit Agreement nor any other agreement limits or restricts the right of the Company to merge, amend or terminate any of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law)Company Benefit Agreements.
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed As used in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.:
Appears in 1 contract
Samples: Investment Agreement
ERISA Compliance; Excess Parachute Payments. (a) The Company Section 3.23(a) of the Seller Disclosure Letter contains sets forth a complete and accurate list and brief description of all "(i) each Seller Benefit Plan that is an “employee pension benefit plans" plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "Company a “Seller Pension Plans"Plan”), "(ii) each Seller Benefit Plan that is an “employee welfare benefit plans" plan” (as defined in Section 3(1) of ERISA) and (a “Seller Welfare Plan”), (iii) all other Company Seller Benefit Plans maintainedand (iv) any employment, deferred compensation, consulting, severance or contributed tochange of control, by the Company termination or indemnification agreement or any Company Subsidiary for the benefit of other agreement with or involving any current or former employeesdirector, officers officer, employee or directors consultant of the Company Seller or any Company SubsidiarySeller Subsidiary or any agreement with any current or former director, officer, employee or consultant of Seller or any Seller Subsidiary the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Seller of a nature contemplated by this Agreement (all such agreements under this clause (a)(iv), collectively, “Seller Benefit Agreements”). The Company Seller has made available provided to Parent true, Purchaser complete and correct accurate copies of (i) each Company Seller Benefit Plan and each Seller Benefit Agreement (or, in the case of any unwritten Company Seller Benefit PlanPlans or Seller Benefit Agreements, a description written descriptions thereof), (ii) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service (the “IRS”) with respect to each Company Seller Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Seller Benefit Plan for which such summary plan description is required and (iv) each trust agreement and insurance or group annuity contract relating to any Company Seller Benefit Plan. Except as would not reasonably be expected to have a Seller Material Adverse Effect, (x) each Seller Benefit Plan has been administered in accordance with its terms, and (y) Seller, each Seller Subsidiary and all Seller Benefit Plans are all in compliance with the applicable provisions of ERISA, the Code and all other Applicable Laws, including laws of foreign jurisdictions, and the terms of all collective bargaining agreements.
(b) All Company Each Seller Pension Plans Plan intended to be tax- tax-qualified have been the subject of has received favorable determination letters from the Internal Revenue Service IRS to the effect that such Company Seller Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor(or, to the best knowledge of the CompanySeller, has revocation been threatened) and, nor to the best knowledge of Seller, no event has any such Company Pension Plan been amended occurred since the date of its the most recent determination letter or application therefor in any respect relating to such Seller Pension Plan that would reasonably be expected to adversely affect the qualification of such Seller Pension Plan. Each Seller Pension Plan has complied since its qualification inception, or materially increase its costs has been amended to comply, with the requirements of the Economic Growth and Tax Relief Reconciliation Act of 2001. All Seller Pension Plans required to have been approved by any foreign Governmental Entity have been so approved, no such approval has been revoked (or, to the best knowledge of Seller, has revocation been threatened) and, to the best knowledge of the CompanySeller, nothing no event has occurred since the date of the most recent approval or application therefor relating to any such letter Seller Pension Plan that could would reasonably be expected to materially affect any such approval relating thereto or materially increase the qualified status costs relating thereto. Seller has delivered to Purchaser a complete and accurate copy of such planthe most recent determination letter received prior to the date hereof with respect to each Seller Pension Plan, as well as a complete and accurate copy of each pending application for a determination letter, if any.
(c) Except as disclosed Neither Seller nor any Commonly Controlled Entity has (i) maintained, contributed to or been required to contribute to any Seller Benefit Plan that is subject to Title IV of ERISA or (ii) has any unsatisfied liability under Title IV of ERISA.
(d) All reports, returns and similar documents with respect to all Seller Benefit Plans required to be filed with any Governmental Entity or distributed to any Seller Benefit Plan participant have been duly and timely filed or distributed. None of Seller or any Seller Subsidiary has received notice of, and to the best knowledge of Seller, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the Company Disclosure Letternormal operation of Seller Benefit Plans or Seller Benefit Agreements), no Company Pension suits or proceedings against or involving any Seller Benefit Plan hador Seller Benefit Agreement or asserting any rights or claims to benefits under any Seller Benefit Plan or Seller Benefit Agreement that would give rise to any material liability, and, to the best knowledge of Seller, there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(e) All contributions, premiums and benefit payments under or in connection with Seller Benefit Plans that are required to have been made as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined hereof in Section 4001(a)(18) accordance with the terms of ERISA), based on actuarial assumptions that Seller Benefit Plans have been furnished to Parenttimely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference into Seller SEC Documents. None Neither any Seller Pension Plan nor any single-employer plan of the Company Pension Plans any Commonly Controlled Entity has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None .
(f) With respect to each Seller Benefit Plan, (i) there has not occurred any prohibited transaction (within the meaning of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) in which Seller or any other breach of fiduciary responsibility that could subject the Company, any Company Seller Subsidiary or any officer of their respective employees, or, to the best knowledge of Seller, any trustee, administrator or other fiduciary of such Seller Benefit Plan, or to the best knowledge of Seller any agent of the Company foregoing, has engaged that would reasonably be expected to subject Seller or any Company Seller Subsidiary or any of their respective employees, or a trustee, administrator or other fiduciary of any trust created under any Seller Benefit Plan, to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or the sanctions imposed under Section 502 of ERISA and (ii) none of the Seller, any Seller Subsidiary or any of their respective employees, or, to the best knowledge of Seller, any trustee, administrator or other fiduciary of any Seller Benefit Plan or to the best knowledge of Seller any agent of any of the foregoing, has engaged in any transaction or acted in a manner, or failed to act in a manner, that would reasonably be expected to subject Seller, any Seller Subsidiary or any of their respective employees, or, to the best knowledge of Seller, any trustee, administrator or other fiduciary, to any liability for breach of fiduciary duty under Section 502(i) ERISA or 502(1) of ERISAany other Applicable Law. None of such Company No Seller Benefit Plans and trusts Plan or related trust has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Seller Benefit Plan during the last five years. Neither , and no notice of a reportable event will be required to be filed in connection with the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)transactions contemplated by this Agreement.
(dg) With respect to any Company Benefit Section 3.23(g) of the Seller Disclosure Letter discloses whether each Seller Welfare Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or self-insured, (ii) funded through a "“welfare benefits benefit fund" (”, as such term is defined in Section 419(e) of the Code), or other funding mechanism or (iiiii) insured. Each such Seller Welfare Plan may be amended or terminated (including with respect to benefits provided to retirees and other former employees) without material liability (other than benefits then payable under such plan without regard to such amendment or termination) to Seller or any Seller Subsidiary at any time after the Closing Date. Each of Seller and the Seller Subsidiaries complies in all material respects with the applicable requirements of Section 4980B(f) of the Code or any similar state statute with respect to each such Company Seller Benefit Plan that is a "group health plan" (, as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Code or such state statute. Neither Seller nor any Seller Subsidiary has any material obligations for retiree health or life insurance benefits under any Seller Benefit Plan (other than for continuation coverage required under Section 4980B(f) of the Code or any similar state statute).
(h) None of the execution and delivery of this Agreement, the obtaining of approval from the shareholders of Seller or any transaction expressly contemplated by this Agreement (including as a result of any termination of employment on or following the Closing Date) will (i) entitle any current or former director, officer, employee or consultant of Seller or any Seller Subsidiary to severance pay, termination, change in control or similar pay and benefits, (ii) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Seller Benefit Plan or Seller Benefit Agreement or (iii) each such Company result in any breach or violation of, or a default under, any Seller Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeSeller Benefit Agreement.
(ei) Neither Seller nor any Seller Subsidiary has any material liability or obligations, including under or on account of a Seller Benefit Plan or Seller Benefit Agreement, arising out of the hiring of persons to provide services to Seller or any Seller Subsidiary and treating such persons as consultants or independent contractors and not as employees of Seller or any Seller Subsidiary.
(j) No deduction by Seller or any Seller Subsidiary in respect of any “applicable employee remuneration” (within the meaning of Section 162(m) of the Code) has been disallowed or is subject to disallowance by reason of Section 162(m) of the Code.
(k) Other than payments that may be made to the persons listed in Section 3.23(k) of the Company Seller Disclosure Letter (the "“Primary Company Seller Executives"”), any no amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of the Merger execution and delivery of this Agreement or any other Transaction (including as a result of the termination of employment on or following the Closing Date) by any employeeofficer, officer director, employee or director consultant of the Company Seller or any of its affiliates Seller Subsidiary who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employmentSeller Benefit Plan, severance Seller Benefit Agreement or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect otherwise would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
) and no such disqualified individual is entitled to receive any additional payment (fincluding, without limitation, any tax gross up or other payment) None from Seller or any Seller Subsidiary or any other person in the event that the excise tax required by Section 4999(a) of the Company Benefit Plans Code is imposed on such disqualified individual. Section 3.23(k) of the Seller Disclosure Letter sets forth (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None Seller’s reasonable, good faith estimates of the Company Benefit Plans provides for payment of maximum amount that could be paid to each Primary Seller Executive as a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason result of the execution and delivery of this Agreement or the consummation any other Transaction (including as a result of the Transactions.
(htermination of employment on or following the Closing Date) Except as disclosed in the Company Disclosure Letter, neither the Company nor under any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Seller Benefit Plan.
, Seller Benefit Agreement or otherwise and (iii) Except the “base amount” (as disclosed defined in Section 280G(b)(3) of the Company Disclosure Letter, Code) for each Primary Seller Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Share Purchase and Sale Agreement (Koninklijke KPN N V)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "All “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company “Parent Pension Plans"”), "“employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other Company material Parent Benefit Plans maintained, or contributed to, by the Company Parent or any Company Parent Subsidiary for the benefit of any current or former employeesParent Participant (other than Parent Multiemployer Pension Plans), officers or directors and, to the knowledge of Parent, each Parent Multiemployer Pension Plan, have been administered in material compliance with their terms and applicable Law, and the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case terms of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Planapplicable collective bargaining agreements.
(b) All Company Each Parent Benefit Plan (other than any Parent Multiemployer Pension Plans Plan) intended to be tax- qualified have “qualified” within the meaning of Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company Pension Plans are Parent Benefit Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyParent, has revocation been threatened, nor has any such Company Parent Benefit Plan (other than any Parent Multiemployer Pension Plan Plan) been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge or require security under Section 307 of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planERISA.
(c) Except as disclosed in During the Company Disclosure Letterpast six years neither Parent nor any Parent ERISA Affiliate has maintained, no Company contributed to or been obligated to maintain or contribute to, or has any actual or contingent Liability under, any Parent Benefit Plan that is subject to Title IV of ERISA, other than any Parent Pension Plan had, as that is a “multiemployer plan” within the meaning of the respective last annual valuation date for each such Company Section 4001(a)(3) of ERISA (a “Parent Multiemployer Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA”), based on actuarial assumptions that . There have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "no non-exempt “prohibited transaction" transactions” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility with respect to any Parent Benefit Plan that is subject to ERISA (other than any Parent Multiemployer Pension Plan), and to the knowledge of Parent, with respect to any Parent Multiemployer Pension Plan, in each case, that could reasonably be expected to subject the CompanyParent, any Company Parent Subsidiary or any officer of the Company Parent or any Company Parent Subsidiary or any of Parent Benefit Plans which are subject to ERISA, or, to the knowledge of Parent, any trusts created thereunder or any trustee or administrator thereof to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability material Liability under Section 502(i) or 502(1) of ERISAERISA or to any other material Liability for breach of fiduciary duty under ERISA or any other applicable Law. None During the six years prior to the date of such Company Benefit Plans and trusts this Agreement, no Parent Pension Plan or related trust has been terminated, . Neither Parent nor any Parent Subsidiary has there been incurred any "reportable event" (as material Liability that term is defined in Section 4043 of ERISA) remains unsatisfied with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Parent Multiemployer Pension Plan.
(d) With respect to any Company Parent Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no such Company Parent Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) except as would not reasonably be expected to have a Parent Material Adverse Effect, each such Company Parent Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code or any similar state statute and (iii) each no such Company Parent Benefit Plan provides benefits after termination of employment, except where the cost thereof is borne entirely by the former employee (including or his eligible dependents or beneficiaries) or as required pursuant to any such Plan covering retirees collective bargaining agreement or other former employeesby Section 4980B(f) may be amended of the Code or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Timesimilar state statute.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any No amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger transactions contemplated hereby (alone or in combination with any other Transaction event) by any employee, officer or director of the Company or any of its affiliates Parent Participant who is an executive officer of Parent who currently has in effect a "disqualified individual" change of control agreement or has an employment agreement with change of control provisions under any Parent Benefit Plan or other compensation arrangement currently in effect would be characterized as an “excess parachute payment” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code)) and no such executive officer is entitled to receive any additional payment from Parent or any other person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such executive officer.
(f) None The execution and delivery by Parent of this Agreement do not, and the consummation of the Company Benefit Plans Transactions and compliance with the terms hereof will not (either alone or in combination with any other event) (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA entitle any Parent Participant to any additional compensation, severance or other benefits, (ii) promises accelerate the time of payment or provides retiree medical vesting or life insurance trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits to under, increase the amount payable or trigger any person other material obligation pursuant to, any Parent Benefit Plan or (other than as required by law)iii) result in any breach or violation of, or a default (with or without notice or lapse of time or both) under, any Parent Benefit Plan.
(g) None Neither Parent nor any Parent Subsidiary has received notice of any, and, to the Company knowledge of Parent, there are no (i) material pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of Parent Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Parent Benefit Plan or (ii) pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Parent Benefit Plan. To the knowledge of Parent, all contributions, premiums and benefit payments under or in connection with Parent Benefit Plans provides that are required to have been made by Parent or any Parent Subsidiary have been timely made, accrued or reserved for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactionsin all material respects.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company Neither Parent nor any Company Parent Subsidiary has an obligation to adopt any new Company Benefit Plan ormaterial Liability or obligations, except as required by law, the amendment including under or on account of an existing Company a Parent Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating of the hiring of persons to the employment or termination of employment of any individual by the Company provide services to Parent or any Company Parent Subsidiary which, if resolved against the Company and treating such persons as consultants or independent contractors and not as employees of Parent or any Company Parent Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (ai) The Section 3.01(m) of the Company Disclosure Letter Schedule contains a true, complete and correct list and brief description of all Company Benefit Plans, including each "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as a "Company Pension PlansPlan"), and "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) ), and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryAgreements. The Company has made available or provided to Parent true, complete and correct copies of (iA) each Company Benefit Plan (or, in the case of any unwritten and Company Benefit Plan, a description thereof)Agreement, (iiB) the three (3) most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if anyrequired pursuant to Applicable Laws), (iiiC) the most recent summary plan description for of each Company Benefit Plan for which such summary plan description is required and required, (ivD) each trust agreement and group annuity contract relating to any Company Benefit PlanPension Plan and (E) the most recent Internal Revenue Service determination letter for each Company Pension Plan intended to be tax-qualified under Section 401(a) of the Code.
(bii) Each Company Benefit Plan has been administered in all material respects in accordance with its terms. The Company, its subsidiaries and each Company Benefit Plan are in compliance in all material respects with the applicable provisions of ERISA and the Code, and all other domestic or foreign (whether national, federal, state, provincial, local or otherwise) laws. There is no pending or, to the knowledge of the Company, threatened, suit, claim (other than claims for benefits in the ordinary course of business), action, investigation or proceeding relating to Company Benefit Plans.
(iii) All Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001, to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections Section 401(a) and 501(a), respectively, of the Code, Code or has been established under prototype plan for which a determination letter from the Internal Revenue Services has been obtained by the plan sponsor and no such determination letter has been revoked nor, to the knowledge of the Company, has any such revocation been threatened, nor has any such Company Pension Plan been amended amended, nor, to the extent required, has there been a failure to amend, in each case since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge require security under Section 307 of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planERISA.
(civ) Except as disclosed in No Company Benefit Plan is, or during the Company Disclosure Letterfive (5) year period ending on the date hereof, no Company Pension Plan hadhas been, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Title IV or Section 302 of ERISA or Section 412 of the Code). To the knowledge of the Company, whether or not waived. None none of the Company, any Company Subsidiaryof its subsidiaries, any officer of the Company or any of its Company Subsidiary or subsidiaries, any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, or any trusts created thereunder or any trustee or administrator thereof, thereof has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could reasonably be expected to subject the Company, any Company Subsidiary of its subsidiaries or any officer of the Company or any Company Subsidiary of its subsidiaries to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)4975.
(dv) With respect to any each Company Benefit Plan that is an employee welfare benefit plan, (iA) no such Company Benefit Plan is unfunded or not funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), ) and (iiB) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Part 6 of Title I of ERISA. Neither the Company nor any of its subsidiaries has any material obligation for retiree health or life benefits under any Company Benefit Plan or Company Benefit Agreement.
(including vi) Except as disclosed on Section 3.01(m)(vi) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement by the Company nor the obtaining of the Stockholder Approval nor the consummation of the merger will (A) entitle any such Plan covering retirees current or other former employeesdirector, officer, employee or consultant of the Company or any of its subsidiaries to severance pay, (B) may be amended or terminated without material liability except pursuant to the Company and Stock Plans which provide for Company Stock Options, accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Subsidiary on Benefit Plan or at Company Benefit Agreement or (C) result in any time after the Effective Timematerial breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(evii) Other than payments that may be made to the persons listed in Section 3.01(m)(vii) of the Company Disclosure Letter (the "Primary Company Executives")Schedule, any amount or economic benefit that could reasonably be expected to be received (whether in cash or property or the vesting of property) as a result of the execution and delivery of this Agreement by the Company, the obtaining of the Stockholder Approval or the consummation of the Merger (including as a result of termination of employment on or any other Transaction following the Effective Time) by any employeecurrent or former director, officer officer, employee or director consultant of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Plan or Company Benefit Plan currently in effect Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(fviii) None of The Company does not have material joint and several liability (actual or potential) under either ERISA or the Company Benefit Plans (i) is a Code with respect to any "multiemployer employee benefit plan" within the meaning of (as defined in Section 4001(a)(33(3) of ERISA or (iiERISA) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit solely by reason of the execution of this Agreement or the consummation being treated as a single employer under Section 414 of the Transactions.
(hCode or Section 4001(b) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filedERISA, with any Governmental Entity trade, business or arbitrator based on, arising out of, in connection with, or otherwise relating to entity other than the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.Company
Appears in 1 contract
Samples: Acquisition Agreement (Alloy Inc)
ERISA Compliance; Excess Parachute Payments. (ai) The Section 3.01(m) of the Company Disclosure Letter Schedule contains a true, complete and correct list and brief description of all "Company Benefit Plans, including each “employee pension benefit plans" plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "a “Company Pension Plans"Plan”), "and “employee welfare benefit plans" plan” (as defined in Section 3(1) of ERISA) ), and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryAgreements. The Company has made available or provided to Parent true, complete and correct copies of (iA) each Company Benefit Plan (or, in the case of any unwritten and Company Benefit Plan, a description thereof)Agreement, (iiB) the three (3) most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if anyrequired pursuant to Applicable Laws), (iiiC) the most recent summary plan description for of each Company Benefit Plan for which such summary plan description is required and required, (ivD) each trust agreement and group annuity contract relating to any Company Benefit PlanPension Plan and (E) the most recent Internal Revenue Service determination letter for each Company Pension Plan intended to be tax-qualified under Section 401(a) of the Code.
(bii) Each Company Benefit Plan has been administered in all material respects in accordance with its terms. The Company, its subsidiaries and each Company Benefit Plan are in compliance in all material respects with the applicable provisions of ERISA and the Code, and all other domestic or foreign (whether national, federal, state, provincial, local or otherwise) laws. There is no pending or, to the knowledge of the Company, threatened, suit, claim (other than claims for benefits in the ordinary course of business), action, investigation or proceeding relating to Company Benefit Plans.
(iii) All Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001, to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections Section 401(a) and 501(a), respectively, of the Code, Code or has been established under prototype plan for which a determination letter from the Internal Revenue Services has been obtained by the plan sponsor and no such determination letter has been revoked nor, to the knowledge of the Company, has any such revocation been threatened, nor has any such Company Pension Plan been amended amended, nor, to the extent required, has there been a failure to amend, in each case since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge require security under Section 307 of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planERISA.
(civ) Except as disclosed in No Company Benefit Plan is, or during the Company Disclosure Letterfive (5) year period ending on the date hereof, no Company Pension Plan hadhas been, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Title IV or Section 302 of ERISA or Section 412 of the Code). To the knowledge of the Company, whether or not waived. None none of the Company, any Company Subsidiaryof its subsidiaries, any officer of the Company or any of its Company Subsidiary or subsidiaries, any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, or any trusts created thereunder or any trustee or administrator thereof, thereof has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could reasonably be expected to subject the Company, any Company Subsidiary of its subsidiaries or any officer of the Company or any Company Subsidiary of its subsidiaries to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)4975.
(dv) With respect to any each Company Benefit Plan that is an employee welfare benefit plan, (iA) no such Company Benefit Plan is unfunded or not funded through a "“welfare benefits benefit fund" ” (as such term is defined in Section 419(e) of the Code), ) and (iiB) each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), ) complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Part 6 of Title I of ERISA. Neither the Company nor any of its subsidiaries has any material obligation for retiree health or life benefits under any Company Benefit Plan or Company Benefit Agreement.
(including vi) Except as disclosed on Section 3.01(m)(vi) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement by the Company nor the obtaining of the Stockholder Approval nor the consummation of the merger will (A) entitle any such Plan covering retirees current or other former employeesdirector, officer, employee or consultant of the Company or any of its subsidiaries to severance pay, (B) may be amended or terminated without material liability except pursuant to the Company and Stock Plans which provide for Company Stock Options, accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Subsidiary on Benefit Plan or at Company Benefit Agreement or (C) result in any time after the Effective Timematerial breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(evii) Other than payments that may be made to the persons listed in Section 3.01(m)(vii) of the Company Disclosure Letter (the "Primary Company Executives")Schedule, any amount or economic benefit that could reasonably be expected to be received (whether in cash or property or the vesting of property) as a result of the execution and delivery of this Agreement by the Company, the obtaining of the Stockholder Approval or the consummation of the Merger (including as a result of termination of employment on or any other Transaction following the Effective Time) by any employeecurrent or former director, officer officer, employee or director consultant of the Company or any of its affiliates who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement Company Benefit Plan or Company Benefit Plan currently in effect Agreement or otherwise would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(fviii) None of The Company does not have material joint and several liability (actual or potential) under either ERISA or the Company Benefit Plans Code with respect to any “employee benefit plan” (i) is a "multiemployer plan" within the meaning of as defined in Section 4001(a)(33(3) of ERISA or (iiERISA) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit solely by reason of the execution of this Agreement or the consummation being treated as a single employer under Section 414 of the Transactions.
(hCode or Section 4001(b) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filedERISA, with any Governmental Entity trade, business or arbitrator based on, arising out of, in connection with, or otherwise relating to entity other than the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.Company
Appears in 1 contract
Samples: Acquisition Agreement (Alloy Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "“employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "“Company Pension Plans"”), "“employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employeesCompany Participant. Each Company Benefit Plan (other than Company Multiemployer Pension Plans), officers or directors and, to the knowledge of the Company, each Company or Multiemployer Pension Plan has been administered in material compliance with its terms and applicable Law, and the terms of any Company Subsidiaryapplicable collective bargaining agreements. The Company has delivered or made available available, or will as soon as practicable following the date hereof deliver or make available, to Parent true, complete and correct copies of (i) each Company Benefit Plan required to be listed on Section 3.11(a) of the Company Disclosure Letter (or, in the case of any unwritten Company Benefit PlanPlans, a description written descriptions thereof), (ii) the two most recent annual report on Form 5500 reports required to be filed, or such similar reports, statements, information returns or material correspondence filed with the Internal Revenue Service or delivered to any Governmental Entity, with respect to each Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description prepared for each Company Benefit Plan for which such summary plan description is required and Plan, (iv) each trust agreement and group annuity contract and other documents relating to the funding or payment of benefits under any Company Benefit Plan, (v) the most recent determination or qualification letter issued by any Governmental Entity for each Company Benefit Plan intended to qualify for favorable tax treatment, as well as a true, correct and complete copy of each pending application for a determination letter, if applicable, and (vi) the two most recent actuarial valuations for each Company Benefit Plan.
(b) All Each Company Benefit Plan (other than any Company Multiemployer Pension Plans Plan) intended to be tax- qualified have “qualified” within the meaning of Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service to the effect that such Company Pension Plans are Benefit Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Benefit Plan (other than any Company Multiemployer Pension Plan Plan) been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge or require security under Section 307 of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such planERISA.
(c) Except as disclosed in During the past six years neither the Company Disclosure Letternor any Company ERISA Affiliate has maintained, no contributed to or been obligated to maintain or contribute to, or has any actual or contingent Liability under, any Company Benefit Plan that is subject to Title IV of ERISA, other than any Company Pension Plan had, as that is a “multiemployer plan” within the meaning of the respective last annual valuation date for each such Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA”), based on actuarial assumptions that . There have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "no non-exempt “prohibited transaction" transactions” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility with respect to any Company Benefit Plan that is subject to ERISA (other than any Company Multiemployer Pension Plan) and, to the knowledge of the Company, with respect to any Company Multiemployer Pension Plan that, in each case, could reasonably be expected to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator thereof to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability material Liability under Section 502(i) or 502(1) of ERISAERISA or to any other material Liability for breach of fiduciary duty under ERISA or any other applicable Law. None During the six years prior to the date of such this Agreement, no Company Benefit Plans and trusts Pension Plan or related trust has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred any material Liability that remains unsatisfied with respect to a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Company Multiemployer Pension Plan.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no such Company Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) except as would not reasonably be expected to have a Company Material Adverse Effect, each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and or any similar state statute, (iii) each no such Company Benefit Plan provides benefits after termination of employment, except where the cost thereof is borne entirely by the former employee (including or his eligible dependents or beneficiaries) or as required pursuant to any such Plan covering retirees collective bargaining agreement or other former employeesby Section 4980B(f) may be amended of the Code or terminated without material liability to any similar state statute and (iv) Section 3.11(d)(iv) of the Company and the Company Subsidiary on Disclosure Letter indicates whether each welfare plan is self-insured or at any time after the Effective Timeinsured through third-party coverage.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any No amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the Merger transactions contemplated hereby (alone or in combination with any other Transaction event) by any employee, Company Participant who is an executive officer or director of the Company who currently has in effect a change of control agreement or has an employment agreement with change of control provisions under any of its affiliates who is a "disqualified individual" Company Benefit Plan or other compensation arrangement currently in effect would be characterized as an “excess parachute payment” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code)) and no such executive officer is entitled to receive any additional payment from the Company or any other person in the event that the excise tax required by Section 4999(a) of the Code is imposed on such executive officer.
(f) None of The execution and delivery by the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or do not, and the consummation of the Transactions.
Transactions and compliance with the terms hereof will not (heither alone or in combination with any other event) Except as disclosed in the Company Disclosure Letter, neither the Company nor (i) entitle any Company Subsidiary has an Participant to any additional compensation, severance or other benefits, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation to adopt pursuant to, any new Company Benefit Plan oror (iii) result in any breach or violation of, except as required by lawor a default (with or without notice or lapse of time or both) under, the amendment of an existing any Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(kg) Neither the Company nor any Company Subsidiary is party has received notice of any, and, to a collective bargaining agreementthe knowledge of the Company, and there are no employees (i) material pending termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Company Subsidiary are represented Benefit Plan or (ii) pending investigations (other than routine inquiries) by any labor organizationGovernmental Entity with respect to any Company Benefit Plan. To the knowledge of the Company, no labor organization all contributions, premiums and benefit payments under or group of employees of in connection with the Company Benefit Plans that are required to have been made by the Company or any Company Subsidiary have been timely made, accrued or reserved for in all material respects.
(h) Neither the Company nor any Company Subsidiary has made any material Liability or obligations, including under or on account of a pending demand for recognition or certificationCompany Benefit Plan, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge arising out of the Company, as hiring of the date of this Agreement, there are no organizing activities involving persons to provide services to the Company or any Company Subsidiary pending with any labor organization and treating such persons as consultants or group of independent contractors and not as employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Section 3.23(a) of the Seller Disclosure Letter contains sets forth a complete and accurate list and brief description of all (i) each Seller Benefit Plan that is an "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as a "Company Seller Pension PlansPlan"), (ii) each Seller Benefit Plan that is an "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) and (a "Seller Welfare Plan"), (iii) all other Company Seller Benefit Plans maintainedand (iv) any employment, deferred compensation, consulting, severance or contributed tochange of control, by the Company termination or indemnification agreement or any Company Subsidiary for the benefit of other agreement with or involving any current or former employeesdirector, officers officer, employee or directors consultant of the Company Seller or any Company SubsidiarySeller Subsidiary or any agreement with any current or former director, officer, employee or consultant of Seller or any Seller Subsidiary the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Seller of a nature contemplated by this Agreement (all such agreements under this clause (a)(iv), collectively, "Seller Benefit Agreements"). The Company Seller has made available provided to Parent true, Purchaser complete and correct accurate copies of (i) each Company Seller Benefit Plan and each Seller Benefit Agreement (or, in the case of any unwritten Company Seller Benefit PlanPlans or Seller Benefit Agreements, a description written descriptions thereof), (ii) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service (the "IRS") with respect to each Company Seller Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Seller Benefit Plan for which such summary plan description is required and (iv) each trust agreement and insurance or group annuity contract relating to any Company Seller Benefit Plan. Except as would not reasonably be expected to have a Seller Material Adverse Effect, (x) each Seller Benefit Plan has been administered in accordance with its terms, and (y) Seller, each Seller Subsidiary and all Seller Benefit Plans are all in compliance with the applicable provisions of ERISA, the Code and all other Applicable Laws, including laws of foreign jurisdictions, and the terms of all collective bargaining agreements.
(b) All Company Each Seller Pension Plans Plan intended to be tax- tax-qualified have been the subject of has received favorable determination letters from the Internal Revenue Service IRS to the effect that such Company Seller Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor(or, to the best knowledge of the CompanySeller, has revocation been threatened) and, nor to the best knowledge of Seller, no event has any such Company Pension Plan been amended occurred since the date of its the most recent determination letter or application therefor in any respect relating to such Seller Pension Plan that would reasonably be expected to adversely affect the qualification of such Seller Pension Plan. Each Seller Pension Plan has complied since its qualification inception, or materially increase its costs has been amended to comply, with the requirements of the Economic Growth and Tax Relief Reconciliation Act of 2001. All Seller Pension Plans required to have been approved by any foreign Governmental Entity have been so approved, no such approval has been revoked (or, to the best knowledge of Seller, has revocation been threatened) and, to the best knowledge of the CompanySeller, nothing no event has occurred since the date of the most recent approval or application therefor relating to any such letter Seller Pension Plan that could would reasonably be expected to materially affect any such approval relating thereto or materially increase the qualified status costs relating thereto. Seller has delivered to Purchaser a complete and accurate copy of such planthe most recent determination letter received prior to the date hereof with respect to each Seller Pension Plan, as well as a complete and accurate copy of each pending application for a determination letter, if any.
(c) Except as disclosed Neither Seller nor any Commonly Controlled Entity has (i) maintained, contributed to or been required to contribute to any Seller Benefit Plan that is subject to Title IV of ERISA or (ii) has any unsatisfied liability under Title IV of ERISA.
(d) All reports, returns and similar documents with respect to all Seller Benefit Plans required to be filed with any Governmental Entity or distributed to any Seller Benefit Plan participant have been duly and timely filed or distributed. None of Seller or any Seller Subsidiary has received notice of, and to the best knowledge of Seller, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the Company Disclosure Letternormal operation of Seller Benefit Plans or Seller Benefit Agreements), no Company Pension suits or proceedings against or involving any Seller Benefit Plan hador Seller Benefit Agreement or asserting any rights or claims to benefits under any Seller Benefit Plan or Seller Benefit Agreement that would give rise to any material liability, and, to the best knowledge of Seller, there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(e) All contributions, premiums and benefit payments under or in connection with Seller Benefit Plans that are required to have been made as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined hereof in Section 4001(a)(18) accordance with the terms of ERISA), based on actuarial assumptions that Seller Benefit Plans have been furnished to Parenttimely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference into Seller SEC Documents. None Neither any Seller Pension Plan nor any single-employer plan of the Company Pension Plans any Commonly Controlled Entity has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None .
(f) With respect to each Seller Benefit Plan, (i) there has not occurred any prohibited transaction (within the meaning of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) in which Seller or any other breach of fiduciary responsibility that could subject the Company, any Company Seller Subsidiary or any officer of their respective employees, or, to the best knowledge of Seller, any trustee, administrator or other fiduciary of such Seller Benefit Plan, or to the best knowledge of Seller any agent of the Company foregoing, has engaged that would reasonably be expected to subject Seller or any Company Seller Subsidiary or any of their respective employees, or a trustee, administrator or other fiduciary of any trust created under any Seller Benefit Plan, to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or the sanctions imposed under Section 502 of ERISA and (ii) none of the Seller, any Seller Subsidiary or any of their respective employees, or, to the best knowledge of Seller, any trustee, administrator or other fiduciary of any Seller Benefit Plan or to the best knowledge of Seller any agent of any of the foregoing, has engaged in any transaction or acted in a manner, or failed to act in a manner, that would reasonably be expected to subject Seller, any Seller Subsidiary or any of their respective employees, or, to the best knowledge of Seller, any trustee, administrator or other fiduciary, to any liability for breach of fiduciary duty under Section 502(i) ERISA or 502(1) of ERISAany other Applicable Law. None of such Company No Seller Benefit Plans and trusts Plan or related trust has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Seller Benefit Plan during the last five years. Neither , and no notice of a reportable event will be required to be filed in connection with the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)transactions contemplated by this Agreement.
(dg) With respect to any Company Benefit Section 3.23(g) of the Seller Disclosure Letter discloses whether each Seller Welfare Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or self-insured, (ii) funded through a "welfare benefits benefit fund" (", as such term is defined in Section 419(e) of the Code), or other funding mechanism or (iiiii) insured. Each such Seller Welfare Plan may be amended or terminated (including with respect to benefits provided to retirees and other former employees) without material liability (other than benefits then payable under such plan without regard to such amendment or termination) to Seller or any Seller Subsidiary at any time after the Closing Date. Each of Seller and the Seller Subsidiaries complies in all material respects with the applicable requirements of Section 4980B(f) of the Code or any similar state statute with respect to each such Company Seller Benefit Plan that is a "group health plan" (, as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Code or such state statute. Neither Seller nor any Seller Subsidiary has any material obligations for retiree health or life insurance benefits under any Seller Benefit Plan (other than for continuation coverage required under Section 4980B(f) of the Code or any similar state statute).
(h) None of the execution and delivery of this Agreement, the obtaining of approval from the shareholders of Seller or any transaction expressly contemplated by this Agreement (including as a result of any termination of employment on or following the Closing Date) will (i) entitle any current or former director, officer, employee or consultant of Seller or any Seller Subsidiary to severance pay, termination, change in control or similar pay and benefits, (ii) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Seller Benefit Plan or Seller Benefit Agreement or (iii) each such Company result in any breach or violation of, or a default under, any Seller Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeSeller Benefit Agreement.
(ei) Neither Seller nor any Seller Subsidiary has any material liability or obligations, including under or on account of a Seller Benefit Plan or Seller Benefit Agreement, arising out of the hiring of persons to provide services to Seller or any Seller Subsidiary and treating such persons as consultants or independent contractors and not as employees of Seller or any Seller Subsidiary.
(j) No deduction by Seller or any Seller Subsidiary in respect of any "applicable employee remuneration" (within the meaning of Section 162(m) of the Code) has been disallowed or is subject to disallowance by reason of Section 162(m) of the Code.
(k) Other than payments that may be made to the persons listed in Section 3.23(k) of the Company Seller Disclosure Letter (the "Primary Company Seller Executives"), any no amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of the Merger execution and delivery of this Agreement or any other Transaction (including as a result of the termination of employment on or following the Closing Date) by any employeeofficer, officer director, employee or director consultant of the Company Seller or any of its affiliates Seller Subsidiary who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employmentSeller Benefit Plan, severance Seller Benefit Agreement or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
) and no such disqualified individual is entitled to receive any additional payment (fincluding, without limitation, any tax gross up or other payment) None from Seller or any Seller Subsidiary or any other person in the event that the excise tax required by Section 4999(a) of the Company Benefit Plans Code is imposed on such disqualified individual. Section 3.23(k) of the Seller Disclosure Letter sets forth (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None Seller's reasonable, good faith estimates of the Company Benefit Plans provides for payment of maximum amount that could be paid to each Primary Seller Executive as a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason result of the execution and delivery of this Agreement or the consummation any other Transaction (including as a result of the Transactions.
(htermination of employment on or following the Closing Date) Except as disclosed in the Company Disclosure Letter, neither the Company nor under any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Seller Benefit Plan.
, Seller Benefit Agreement or otherwise and (iii) Except the "base amount" (as disclosed defined in Section 280G(b)(3) of the Company Disclosure Letter, Code) for each Primary Seller Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 2.15(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies list of (i) each material Company Benefit Plan (or, in the case of any unwritten and material Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Agreement. Each material Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each material Company Benefit Plan for which such summary plan description is required Agreement has been administered in compliance with its terms and (iv) each trust agreement applicable Law and group annuity contract relating to the terms of any Company Benefit Planapplicable collective bargaining agreements.
(b) All The Company Pension Plans intended to be tax- qualified have been the subject of has received determination letters from the Internal Revenue Service for all Company Pension Plans intended to be tax qualified to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or are in the form of a prototype plan that is the subject of a favorable opinion letter from the Internal Revenue Service, and no such determination or opinion letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended or failed to be amended since the date of its most recent determination or opinion letter or application therefor in any respect that would materially adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in Neither the Company Disclosure Letternor any other trade or business that, no together with the Company or any Company Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code (a “Commonly Controlled Entity”) has any liability under, any Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term that is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished subject to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 Title IV of ERISA or Section 412 of the Code), whether Code or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in is otherwise a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer benefit pension plan (within the meaning of Section 4001(a)(3) of ERISA)plan.
(d) With respect to any material Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no each such material Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), ) or is unfunded and (ii) each no such material Company Benefit Plan that provides benefits after termination of employment, except where the cost thereof is a "group health plan" borne entirely by the former employee (or his eligible dependents or beneficiaries) or as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of required by Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeCode.
(e) Other than payments that may be made Neither the execution nor delivery of this Agreement, nor the consummation of the Transaction, the Restructuring or the other transactions contemplated hereby will (i) entitle any Employees to any severance pay or increase in severance pay, (ii) accelerate the persons listed time of payment or vesting of, increase the amount payable of, or result in the payment, funding or other material obligation to provide, compensation or benefits under any Company Disclosure Letter Benefit Plan or Company Benefit Agreement, nor (the "Primary Company Executives"), iii) result in any amount that could be received payment (whether in cash or property or the vesting of property) as a result of the Merger or to any other Transaction by any employee, officer or director of the Company or any of its affiliates person who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment(each, severance or termination agreement, other compensation arrangement or a “Disqualified Individual”) with respect to the Company Benefit Plan currently in effect which would not be characterized as deemed to be an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code)) and no such Disqualified Individual is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Reorganized Company, any Company Subsidiary in the event that the excise tax required by Section 4999(a) of the Code is imposed on such Disqualified Individual. No person is entitled to receive any additional payment (e.g., any tax gross-up or any other payment) from the Company, the Reorganized Company, any Company Subsidiary or any other person in the event that the additional tax required by Section 409A of the Code is imposed on a person.
(f) None No Company Benefit Plan, Company Benefit Agreement nor any other agreement limits or restricts the right of the Company to merge, amend or terminate any of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law)Company Benefit Agreements.
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed As used in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.:
Appears in 1 contract
Samples: Investment Agreement
ERISA Compliance; Excess Parachute Payments. (ai) The Company Section 3.2(s)(i) of the UroCor Disclosure Letter Schedule contains a list and brief description of all each UroCor Benefit Plan that is an "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company UroCor Pension Plans"), "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) and all other Company UroCor Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiaryand UroCor Benefit Agreements. The Company UroCor has made available to Parent Dianon true, complete and correct copies of (ia) each Company UroCor Benefit Plan and UroCor Benefit Agreement (or, in the case of any unwritten Company UroCor Benefit Plan, Plan or UroCor Benefit Agreement a description -34- 39 thereof), (iib) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company UroCor Benefit Plan (if any such report was required) and actuarial reports, if any), (iiic) the most recent summary plan description for each Company UroCor Benefit Plan for which such summary plan description is required and (ivd) each trust agreement and insurance or group annuity contract relating to any Company UroCor Benefit Plan.
(bii) In all material respects, each UroCor Benefit Plan has been administered in accordance with its terms and in accordance with the applicable provisions of ERISA and the Code, and all other applicable laws, including laws of foreign jurisdictions, and the terms of all applicable collective bargaining agreements. All Company UroCor Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service to the effect that such Company UroCor Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyUroCor, has revocation been threatened, nor has any such Company Pension Plan been amended event occurred since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andor require security under Section 307 of ERISA. All UroCor Pension Plans required to have been approved by any foreign Governmental Entity have been so approved; no such approval has been revoked (or, to the knowledge of the CompanyUroCor, nothing has revocation been threatened) nor has any event occurred since the date of the most recent approval or application therefor relating to any such UroCor Pension Plan that would materially affect any such approval relating thereto or materially increase the costs relating thereto. UroCor has made available to Dianon a true and complete copy of the most recent determination letter that could reasonably be expected received with respect to affect each UroCor Pension Plan, as well as a true and complete copy of each pending application for a determination letter, if any. UroCor has also made available to Dianon a true and complete list of all UroCor Pension Plan amendments as to which a favorable determination letter has not yet been received. There is no pending or, to the qualified status knowledge of such planUroCor, threatened litigation relating to any UroCor Benefit Plan.
(ciii) Except as disclosed in the Company Disclosure LetterNo UroCor Pension Plan, no Company other than any UroCor Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "UroCor Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company UroCor Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to ParentDianon, and there has been no material adverse change in the financial condition of any UroCor Pension Plan since its last such annual valuation date. No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the UroCor or any of its Subsidiaries with respect to any ongoing, frozen or terminated "single-employer plan", within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single- employer plan of any UroCor Commonly Controlled Entity. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the CompanyUroCor, any Company Subsidiaryof its Subsidiaries, any officer of the Company UroCor or any of its Company Subsidiary Subsidiaries or any of the Company UroCor Benefit Plans which are subject to ERISA, including the Company UroCor Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyUroCor, any Company Subsidiary of its Subsidiaries or -35- 40 any officer of the Company UroCor or any Company Subsidiary of its Subsidiaries to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company UroCor Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company UroCor Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Merger or the other transactions contemplated by this Agreement. Neither the Company UroCor nor any Company Subsidiary of its Subsidiaries has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension UroCor Multiemployer Pension Plan. All contributions and premiums required to be made under the terms of any UroCor Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the UroCor SEC Reports. Neither any UroCor Pension Plan nor any single-employer plan of any UroCor Commonly Controlled Entity has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(div) With respect to any Company Section 3.2(s)(iv) of the UroCor Disclosure Schedule discloses whether each UroCor Benefit Plan that is an employee welfare benefit planplan is (a) unfunded, (ib) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), ) or other funding mechanism or (iic) insured. In the case of each such Company UroCor Benefit Plan that is funded through a trust, the trust has received a favorable determination letter determining the trust to be tax-exempt under Section 501(c)(9) of the Code, and such determination letter is currently valid. UroCor has made available to Dianon a copy of each such determination letter. Any such trust, or any other "welfare benefit fund", is in compliance with all applicable provisions of ERISA and the Code. UroCor and its Subsidiaries, with respect to each UroCor Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies comply in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Code. Each UroCor Benefit Plan (including any such Plan plan covering retirees or other former employees) that is an employee welfare benefit plan may be amended or terminated without material liability to the Company and the Company Subsidiary UroCor or any of its Subsidiaries on or at any time after the Effective Time. Except as required under Section 4980B of the Code, neither UroCor nor any of its Subsidiaries has any obligations for retiree health or retiree life insurance benefits under any UroCor Benefit Plan or UroCor Benefit Agreement.
(ev) Other than payments that may be made Except as set forth in Section 3.2(s)(v) of the UroCor Disclosure Schedule, none of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated by this Agreement (including as a result of any termination of employment following the Effective Time) will (x) entitle any employee, officer, consultant or director of UroCor or any of its Subsidiaries to severance or termination pay, (y) accelerate the persons listed in time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the Company Disclosure Letter (the "Primary Company Executives")amount payable or trigger any other material obligation pursuant to, any of the UroCor Benefit Plans or UroCor Benefit Agreements or (z) result in any breach or -36- 41 violation of, or a default under, any of the UroCor Benefit Plans or UroCor Benefit Agreements.
(vi) Except as set forth in Section 3.2(s)(vi) of the UroCor Disclosure Schedule, no amount or other entitlement or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction transaction contemplated by this Agreement (including as a result of termination of employment on or following the Effective Time) by or for the benefit of any employee, officer officer, director or director consultant of the Company UroCor or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company UroCor Benefit Plan currently in effect or UroCor Benefit Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None , and no disqualified individual is entitled to receive any additional payment from UroCor or any of its Subsidiaries in the event that the excise tax under Section 4999 of the Company Code is imposed on such disqualified individual. Set forth in Section 3.2(s)(vi) of the UroCor Disclosure Schedule is (a) the estimated maximum amount that could be paid to each such "disqualified individual" and each other person listed in Section 3.2(s)(vi) (each a "Primary UroCor Executive") as a result of the Merger and the other transactions contemplated by this Agreement (including as a result of a termination of employment on or following the Effective Time) under all UroCor Benefit Plans and UroCor Benefit Agreements and (ib) is a the "multiemployer planbase amount" within the meaning of (as defined in Section 4001(a)(3280G(b)(3) of ERISA or (iithe Code) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, each Primary UroCor Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated .
(vii) UroCor and its Subsidiaries are in compliance in all material respects in accordance with all Federal, state, local and foreign requirements regarding employment. Neither UroCor nor any of its terms Subsidiaries is a party to any collective bargaining or other labor union contract applicable to persons employed by UroCor or any of its Subsidiaries and the requirements no collective bargaining agreement is being negotiated by UroCor or any of all applicable law.
(j) its Subsidiaries. As of the date of this Agreement, the Company there is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementno labor dispute, and no employees of the Company strike or work stoppage against UroCor or any Company Subsidiary are represented by any labor organization. To of its Subsidiaries pending or, to the knowledge of UroCor, threatened which may interfere with the Company, no labor organization respective business activities of UroCor or group of employees its Subsidiaries. As of the Company date of this Agreement, to the knowledge of UroCor, none of UroCor, any of its Subsidiaries or any Company Subsidiary of their respective representatives or employees has made a pending demand for recognition committed an unfair labor practice in connection with the operation of the respective businesses of UroCor or certificationany of its Subsidiaries, and there are is no representation charge or certification proceedings complaint against UroCor or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with any of its Subsidiaries by the National Labor Relations Board or any other labor relations tribunal comparable governmental agency pending or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiarythreatened in writing.
(lviii) There are no complaintsAll reports, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing returns and similar documents with respect to all UroCor Benefit Plans required to be brought or filed, filed with any Governmental Entity or arbitrator based ondistributed to any UroCor Benefit Plan participant have been duly and timely filed or distributed. None of UroCor or any of its Subsidiaries has received notice of, and to the knowledge of UroCor, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the UroCor Benefit Plans), suits or proceedings against or involving any UroCor Benefit Plan or asserting any rights or claims to benefits under any UroCor Benefit Plan that could give rise to any liability, and, to the knowledge of UroCor, there are not any -37- 42 facts that could give rise to any liability in the event of any such investigation, claim, suit or proceeding.
(ix) None of UroCor nor any of its Subsidiaries has any material liability or obligations, including under or on account of a UroCor Benefit Plan, arising out of, in connection with, or otherwise relating of the hiring of persons to the employment or termination of employment of any individual by the Company provide services to UroCor or any Company Subsidiary which, if resolved against the Company of its Subsidiaries and treating such persons as consultants or independent contractors and not as employees of UroCor or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effectof its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Urocor Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.12 of the Company Disclosure Letter Schedule contains a list of each Benefit Plan and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryAgreement. The Company has made available to Parent true, complete and correct copies of (ia) each Company material Benefit Plan and Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Benefit Agreement, a description thereof)) and related documents including trust documents, summary plan descriptions, group annuity contracts, plan amendments, insurance policies or contracts, employee booklets, administrative services agreements, standard COBRA notices and forms, registration statements and prospectuses, (iib) the three most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iiic) the compliance and non-discrimination tests for the last three years, and (d) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanInternal Revenue Service determination or opinion letter.
(b) Each Benefit Plan and Benefit Agreement has been administered in all material respects in accordance with its terms in all material respects with the applicable provisions of ERISA and the Code, and all other applicable laws, including laws of foreign jurisdictions. The Company and each Commonly Controlled Entity have performed in all material respects all obligations required to be performed by them under and are not in any material respect in default under or violation of and have no knowledge of any material default or violation by any other party with respect to any Benefit Plan or Benefit Agreement. All Company Pension Benefit Plans intended to be tax- tax-qualified under Code Section 401(a) ("Pension Plans") have been the subject of either received a favorable determination letters or opinion letter from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or the remedial amendment period under Section 401(b) of the Code has not expired, and no such determination or opinion letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended event occurred since the date of its most recent determination letter or opinion letter, application therefor in any respect or Pension Plan's adoption that would adversely affect its qualification or materially increase its costs andcosts. All Benefit Plans required to have been approved by any foreign Governmental Entity have been so approved; no such approval has been revoked (or, to the knowledge of the Company, nothing has revocation been threatened) nor has any event occurred since the date of the most recent approval or application therefor relating to any such Benefit Plan that would materially affect any such approval relating thereto or materially increase the costs relating thereto. The Company has delivered to Parent a true and complete copy of the most recent determination letter that could reasonably be expected received with respect to affect the qualified status each Pension Plan, as well as a true and complete copy of such planeach pending application for a determination letter, if any.
(c) Except as disclosed in No Pension Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Pension Plan") or is subject to the provisions of Title IV of ERISA, and neither the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) nor any Commonly Controlled Entity could have any liability under Title IV of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiaryof its subsidiaries, any officer of the Company or any of its Company Subsidiary subsidiaries or any of the Company Benefit Plans which are subject to ERISA, including the Company any Pension PlansPlan, any trusts created thereunder or to the knowledge of the Company any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary of its subsidiaries or any officer of the Company or any Company Subsidiary of its subsidiaries to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been . All contributions and premiums and benefit payments required to be made under the terms of any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during as of the last five years. Neither date hereof have been timely made or have been reflected on the most recent consolidated balance sheet included in the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)SEC Documents.
(d) With All reports, returns and similar documents with respect to all Benefit Plans required to be filed with any Governmental Entity or distributed to any Benefit Plan participant have been duly and timely filed or distributed except for such failures that do not result in any material liability. None of the Company or any of its subsidiaries has received notice of, and to the knowledge of the Company, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that is an employee welfare benefit plancould give rise to any material liability, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) and, to the knowledge of the Code)Company, there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(iie) The Company and its subsidiaries, with respect to each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies comply in all material respects with the applicable requirements of (i) Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer state law governing health care coverage extension or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.continuation;
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all material "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension PlansCOMPANY PENSION PLANS"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan, if any.
(b) All Company Benefit Plans are in compliance in all material respects with applicable Law (including, where applicable, the Code and ERISA). All Company Pension Plans which are intended to be tax- tax-qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and their related trusts are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the CodeInternal Revenue Code of 1986, as amended (the "CODE"), and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any . No such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or qualification, nor has any such Company Pension Plan been amended since December 31, 1998 in any respect that would materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan had, as is a "defined benefit plan" within the meaning of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(183(35) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or is subject to the minimum funding standards of Section 412 of the CodeCode or Section 302 of ERISA, and neither the Company nor any Company Subsidiary has any actual or contingent liability under any defined benefit plan which it (or any affiliate) previously maintained or contributed to (or was obligated to maintain or contribute to), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) all such Company Benefit Plans are unfunded and no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary Subsidiaries on or at any time after the Effective Time, except with respect to contributions, premiums or benefit claims (actual or contingent) with respect to the period from the Effective Time to such termination.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company ExecutivesPRIMARY COMPANY EXECUTIVES"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, any other compensation arrangement or any Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed . Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Offer, the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (ai) The Company Section 3.2(s)(i) of the UroCor Disclosure Letter Schedule contains a list and brief description of all each UroCor Benefit Plan that is an "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company UroCor Pension Plans"), "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) and all other Company UroCor Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiaryand UroCor Benefit Agreements. The Company UroCor has made available to Parent Dianon true, complete and correct copies of (ia) each Company UroCor Benefit Plan and UroCor Benefit Agreement (or, in the case of any unwritten Company UroCor Benefit Plan, Plan or UroCor Benefit Agreement a description thereof), (iib) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company UroCor Benefit Plan (if any such report was required) and actuarial reports, if any), (iiic) the most recent summary plan description for each Company UroCor Benefit Plan for which such summary plan description is required and (ivd) each trust agreement and insurance or group annuity contract relating to any Company UroCor Benefit Plan.
(bii) In all material respects, each UroCor Benefit Plan has been administered in accordance with its terms and in accordance with the applicable provisions of ERISA and the Code, and all other applicable laws, including laws of foreign jurisdictions, and the terms of all applicable collective bargaining agreements. All Company UroCor Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service to the effect that such Company UroCor Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyUroCor, has revocation been threatened, nor has any such Company Pension Plan been amended event occurred since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andor require security under Section 307 of ERISA. All UroCor Pension Plans required to have been approved by any foreign Governmental Entity have been so approved; no such approval has been revoked (or, to the knowledge of the CompanyUroCor, nothing has revocation been threatened) nor has any event occurred since the date of the most recent approval or application therefor relating to any such UroCor Pension Plan that would materially affect any such approval relating thereto or materially increase the costs relating thereto. UroCor has made available to Dianon a true and complete copy of the most recent determination letter that could reasonably be expected received with respect to affect each UroCor Pension Plan, as well as a true and complete copy of each pending application for a determination letter, if any. UroCor has also made available to Dianon a true and complete list of all UroCor Pension Plan amendments as to which a favorable determination letter has not yet been received. There is no pending or, to the qualified status knowledge of such planUroCor, threatened litigation relating to any UroCor Benefit Plan.
(ciii) Except as disclosed in the Company Disclosure LetterNo UroCor Pension Plan, no Company other than any UroCor Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "UroCor Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company UroCor Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to ParentDianon, and there has been no material adverse change in the financial condition of any UroCor Pension Plan since its last such annual valuation date. No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the UroCor or any of its Subsidiaries with respect to any ongoing, frozen or terminated "single-employer plan", within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single- employer plan of any UroCor Commonly Controlled Entity. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the CompanyUroCor, any Company Subsidiaryof its Subsidiaries, any officer of the Company UroCor or any of its Company Subsidiary Subsidiaries or any of the Company UroCor Benefit Plans which are subject to ERISA, including the Company UroCor Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyUroCor, any Company Subsidiary of its Subsidiaries or any officer of the Company UroCor or any Company Subsidiary of its Subsidiaries to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company UroCor Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company UroCor Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Merger or the other transactions contemplated by this Agreement. Neither the Company UroCor nor any Company Subsidiary of its Subsidiaries has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension UroCor Multiemployer Pension Plan. All contributions and premiums required to be made under the terms of any UroCor Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the UroCor SEC Reports. Neither any UroCor Pension Plan nor any single-employer plan of any UroCor Commonly Controlled Entity has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(div) With respect to any Company Section 3.2(s)(iv) of the UroCor Disclosure Schedule discloses whether each UroCor Benefit Plan that is an employee welfare benefit planplan is (a) unfunded, (ib) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), ) or other funding mechanism or (iic) insured. In the case of each such Company UroCor Benefit Plan that is funded through a trust, the trust has received a favorable determination letter determining the trust to be tax-exempt under Section 501(c)(9) of the Code, and such determination letter is currently valid. UroCor has made available to Dianon a copy of each such determination letter. Any such trust, or any other "welfare benefit fund", is in compliance with all applicable provisions of ERISA and the Code. UroCor and its Subsidiaries, with respect to each UroCor Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies comply in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Code. Each UroCor Benefit Plan (including any such Plan plan covering retirees or other former employees) that is an employee welfare benefit plan may be amended or terminated without material liability to the Company and the Company Subsidiary UroCor or any of its Subsidiaries on or at any time after the Effective Time. Except as required under Section 4980B of the Code, neither UroCor nor any of its Subsidiaries has any obligations for retiree health or retiree life insurance benefits under any UroCor Benefit Plan or UroCor Benefit Agreement.
(ev) Other than payments that may be made Except as set forth in Section 3.2(s)(v) of the UroCor Disclosure Schedule, none of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated by this Agreement (including as a result of any termination of employment following the Effective Time) will (x) entitle any employee, officer, consultant or director of UroCor or any of its Subsidiaries to severance or termination pay, (y) accelerate the persons listed in time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the Company Disclosure Letter (the "Primary Company Executives")amount payable or trigger any other material obligation pursuant to, any of the UroCor Benefit Plans or UroCor Benefit Agreements or (z) result in any breach or violation of, or a default under, any of the UroCor Benefit Plans or UroCor Benefit Agreements.
(vi) Except as set forth in Section 3.2(s)(vi) of the UroCor Disclosure Schedule, no amount or other entitlement or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction transaction contemplated by this Agreement (including as a result of termination of employment on or following the Effective Time) by or for the benefit of any employee, officer officer, director or director consultant of the Company UroCor or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company UroCor Benefit Plan currently in effect or UroCor Benefit Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None , and no disqualified individual is entitled to receive any additional payment from UroCor or any of its Subsidiaries in the event that the excise tax under Section 4999 of the Company Code is imposed on such disqualified individual. Set forth in Section 3.2(s)(vi) of the UroCor Disclosure Schedule is (a) the estimated maximum amount that could be paid to each such "disqualified individual" and each other person listed in Section 3.2(s)(vi) (each a "Primary UroCor Executive") as a result of the Merger and the other transactions contemplated by this Agreement (including as a result of a termination of employment on or following the Effective Time) under all UroCor Benefit Plans and UroCor Benefit Agreements and (ib) is a the "multiemployer planbase amount" within the meaning of (as defined in Section 4001(a)(3280G(b)(3) of ERISA or (iithe Code) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, each Primary UroCor Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated .
(vii) UroCor and its Subsidiaries are in compliance in all material respects in accordance with all Federal, state, local and foreign requirements regarding employment. Neither UroCor nor any of its terms Subsidiaries is a party to any collective bargaining or other labor union contract applicable to persons employed by UroCor or any of its Subsidiaries and the requirements no collective bargaining agreement is being negotiated by UroCor or any of all applicable law.
(j) its Subsidiaries. As of the date of this Agreement, the Company there is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementno labor dispute, and no employees of the Company strike or work stoppage against UroCor or any Company Subsidiary are represented by any labor organization. To of its Subsidiaries pending or, to the knowledge of UroCor, threatened which may interfere with the Company, no labor organization respective business activities of UroCor or group of employees its Subsidiaries. As of the Company date of this Agreement, to the knowledge of UroCor, none of UroCor, any of its Subsidiaries or any Company Subsidiary of their respective representatives or employees has made a pending demand for recognition committed an unfair labor practice in connection with the operation of the respective businesses of UroCor or certificationany of its Subsidiaries, and there are is no representation charge or certification proceedings complaint against UroCor or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with any of its Subsidiaries by the National Labor Relations Board or any other labor relations tribunal comparable governmental agency pending or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiarythreatened in writing.
(lviii) There are no complaintsAll reports, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing returns and similar documents with respect to all UroCor Benefit Plans required to be brought or filed, filed with any Governmental Entity or arbitrator based ondistributed to any UroCor Benefit Plan participant have been duly and timely filed or distributed. None of UroCor or any of its Subsidiaries has received notice of, and to the knowledge of UroCor, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the UroCor Benefit Plans), suits or proceedings against or involving any UroCor Benefit Plan or asserting any rights or claims to benefits under any UroCor Benefit Plan that could give rise to any liability, and, to the knowledge of UroCor, there are not any facts that could give rise to any liability in the event of any such investigation, claim, suit or proceeding.
(ix) None of UroCor nor any of its Subsidiaries has any material liability or obligations, including under or on account of a UroCor Benefit Plan, arising out of, in connection with, or otherwise relating of the hiring of persons to the employment or termination of employment of any individual by the Company provide services to UroCor or any Company Subsidiary which, if resolved against the Company of its Subsidiaries and treating such persons as consultants or independent contractors and not as employees of UroCor or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effectof its Subsidiaries.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (ai) The Company Section 3.01(k) of the Target Disclosure Letter Schedule contains a list and brief description of all each Target Benefit Plan that is an "employee pension benefit plansplan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Target Pension Plans"), "employee welfare benefit plansplan" (as defined in Section 3(1) of ERISA) and all other Company Target Benefit Plans maintained, and Target Benefit Agreements. Target has delivered (or contributed to, by will deliver as soon as practicable following the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available date hereof) to Parent true, complete and correct copies of (ia) each Company Target Benefit Plan and Target Benefit Agreement (or, in the case of any unwritten Company Target Benefit Plan, Plan or Target Benefit Agreement a description thereof), (iib) the two most recent annual report reports on Form 5500 filed with the Internal Revenue Service with respect to each Company Target Benefit Plan (if any such report was required) and actuarial reports, if any), (iiic) the most recent summary plan description for each Company Target Benefit Plan for which such summary plan description is required (other than any summary plan description which is in the process of being prepared in compliance with applicable law) and (ivd) each trust agreement and insurance or group annuity contract relating to any Company Target Benefit Plan.. 24
(bii) Each Target Benefit Plan has been administered in all material respects in accordance with its terms. Target, its subsidiaries and each Target Benefit Plan are in compliance in all material respects with the applicable provisions of ERISA and the Code, and all other applicable laws, including laws of foreign jurisdictions. Target is not a party to any collective bargaining agreement. All Company Target Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39), to the effect that such Company Target Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the CompanyTarget, has revocation been threatened, nor has any such Company Pension Plan been amended event occurred since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs andor require security under Section 307 of ERISA. The XX Xxxxx Canada Pension Plan having been terminated with the approval of the appropriate governmental authorities, there is currently no Target Pension Plan which is required to have been approved by any foreign Governmental Entity. Target has delivered to Parent a true and complete copy of the most recent determination letter received with respect to each Target Pension Plan. There is currently no pending application for a determination letter. Target has also provided to Parent a restatement of the Houghton Mifflin Retirement Plan which contains all Target Pension Plan amendments as to which a favorable determination letter has not yet been received. There is no pending or, to the knowledge of the CompanyTarget, nothing has occurred since the date of such letter that could reasonably be expected threatened litigation relating to affect the qualified status of such planany Target Benefit Plan.
(ciii) Except as disclosed in the Company Disclosure Letter, no Company No Target Pension Plan (1) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (2) had, as of the respective last annual valuation date for each such Company Target Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, and there has been no material adverse change in the financial condition of any Target Pension Plan since its last such annual valuation date. No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by Target or any of its subsidiaries with respect to any ongoing, frozen or terminated "single-employer plan", within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any Commonly Controlled Entity. None of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the CompanyTarget, any Company Subsidiaryof its subsidiaries, any officer of the Company Target or any of its Company Subsidiary subsidiaries or any of the Company Target Benefit Plans which are subject to ERISA, including the Company Target Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyTarget, any Company Subsidiary of its subsidiaries or any officer of the Company Target or any Company Subsidiary of its subsidiaries to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None Although the Target Pension Plan was converted on January 1, 1997 into the Houghton Mifflin Retirement Plan (a cash-balance pension plan), no Target Pension Plan subject to Title IV of such Company Benefit Plans and trusts ERISA or any related trust has been terminatedterminated within the five- year period preceding the date hereof, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Benefit Target Pension Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Offer, the Merger or the other transactions contemplated by this Agreement. All contributions and premiums required to be made under the terms of any Target Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Target Filed SEC Documents. Neither the Company any Target Pension Plan nor any Company Subsidiary single-employer plan of any Commonly Controlled Entity has incurred a an "complete withdrawal" or a "partial withdrawalaccumulated funding deficiency" (as such terms are term is defined in Sections 4203 and 4205Section 302 of ERISA or Section 412 of the Code), respectively, of ERISAwhether or not waived. 26
(iv) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(33.01(k)(iv) of ERISA).
(d) With respect to any Company the Target Disclosure Schedule discloses whether each Target Benefit Plan that is an employee welfare benefit planplan is (a) unfunded, (ib) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code)) or other funding mechanism or (c) insured. Target and its subsidiaries, (ii) with respect to each such Company Target Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies comply in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Code. Each Target Benefit Plan (including any such Plan plan covering retirees or other former employees) that is an employee welfare benefit plan may be amended or terminated without material liability to the Company and the Company Subsidiary Target or any of its subsidiaries on or at any time after the Effective TimeTime (other than liabilities accrued as of the time of such amendment or termination). Neither Target nor any of its subsidiaries has any obligations for retiree health or life insurance benefits under any Target Benefit Plan or Target Benefit Agreement.
(ev) None of the execution and delivery of this Agreement, the consummation of the Offer, the Merger or any other transaction contemplated by this Agreement (including as a result of any termination of employment or engagement following the Effective Time) will (x) entitle any employee, officer, consultant or director of Target or any of its subsidiaries to severance or termination pay, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Target Benefit Plans or Target Benefit Agreements or (z) result in any breach or violation of, or a default under, any of the Target Benefit Plans or Target Benefit Agreements.
(vi) Other than payments or benefits that may be made or provided to the persons listed in Section 3.01(k)(i) of the Company Target Disclosure Letter Schedule under the categories "Change-in-Control Agreements 3X" and "Change-in-Control Agreements 2X" (the "Primary Company Target Executives"), any to the knowledge of Target, no amount or other entitlement or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the Offer or the Merger (whether taken alone or together with any other Transaction termination, including constructive termination, of employment on or following the Effective Time) by or for the benefit of any employee, officer officer, director or director consultant of the Company Target or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Target Benefit Plan currently in effect would not or Target Benefit Agreement or otherwise should be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None , and, to the knowledge of Target, other than certain Primary Target Executives, no disqualified individual is entitled to receive any additional payment from Target or any of its subsidiaries or any other person in the event that the excise tax under Section 4999 of the Company Code is imposed on such disqualified individual. Target has provided Parent with (a) the estimated "parachute payments" (as defined in Section 280G(b)(2) of the Code) that could be paid to each Primary Target Executive (except those listed in Section 3.01(k)(i) of the Target Disclosure Schedule) as a result of the Offer or the Merger (whether taken alone or together with any termination of employment on or following the Effective Time) under all Target Benefit Plans and Target Benefit Agreements and (ib) is a the "multiemployer planbase amount" within the meaning of (as defined in Section 4001(a)(3280G(b)(3) of ERISA or (iithe Code) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, each Primary Target Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(jvii) Target and its subsidiaries are in compliance with all Federal, state, local and foreign requirements regarding employment, except for such noncompliance that, individually and in the aggregate, is not reasonably likely to have a material adverse effect on Target. Neither Target nor any of its subsidiaries is a party to any collective bargaining or other labor union contract applicable to persons employed by Target or any of its subsidiaries and no collective bargaining agreement is being negotiated by Target or any of its subsidiaries. As of the date of this Agreement, the Company there is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreementno labor dispute, and no employees of the Company strike or work stoppage against Target or any Company Subsidiary are represented by any labor organization. To of its subsidiaries pending or, to the knowledge of Target, threatened which may interfere with the Company, no labor organization respective business activities of Target or group of employees its subsidiaries. As of the Company date of this Agreement, to the knowledge of Target, none of Target, any of its subsidiaries or any Company Subsidiary of their respective representatives, employees or independent contractors has made committed a pending demand for recognition material unfair labor practice in connection with the operation of the respective businesses of Target or certificationany of its subsidiaries, and there are is no representation charge or certification proceedings complaint against Target or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with any of its subsidiaries by the National Labor Relations Board or any other labor relations tribunal comparable governmental agency pending or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiarythreatened in writing.
(lviii) There are no complaintsAll material reports, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing returns and similar documents with respect to all Target Benefit Plans required to be brought or filed, filed with any Governmental Entity or arbitrator based ondistributed to any Target Benefit Plan participant have been duly and timely filed or distributed. None of Target or any of its subsidiaries has received notice of, and to the knowledge of Target, there are no investigations by any Governmental Entity with respect to, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Target Benefit Plans), suits or proceedings against or involving any Target Benefit Plan or asserting any rights or claims to benefits under any Target Benefit Plan that could give rise to any liability, and, to the knowledge of Target, there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(ix) Except as would not reasonably be likely, individually and in the aggregate, to have a material adverse effect on Target, none of Target nor any of its subsidiaries has any material liability or obligations, including under or on account of a Target Benefit Plan, arising out of, in connection with, or otherwise relating of the hiring of persons to the employment or termination of employment of any individual by the Company provide services to Target or any Company Subsidiary which, if resolved against the Company of its subsidiaries and treating such persons as consultants or independent contractors and not as employees of Target or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effectof its subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Vivendi Universal)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "“employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "“Company Pension Plans"”), "“employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintainedmaintained or contributed to, or required to be maintained or contributed to, by the Company, any Company Subsidiary or any other person that, together with the Company or any Company Subsidiary Subsidiary, is treated as a single employer under Section 4001 of ERISA or Section 414 of the Code (an “ERISA Affiliate”) for the benefit of any current or former employees, officers or directors Related Persons of the Company, any Company Subsidiary or any ERISA Affiliate. Each Company SubsidiaryBenefit Plan and Company Benefit Agreement has been administered in compliance with its terms and applicable law. All contributions, reimbursements, premium payments and other payments required to have been made under or with respect to each Company Benefit Plan and Company Benefit Agreement have been made on a timely basis in accordance with applicable Law and the terms of the applicable Company Benefit Plan and Company Benefit Agreement. The Company has made available delivered to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (v) the most recent actuarial report with respect to each Company Benefit Plan for which an actuarial report was required or prepared.
(b) All Company Pension Plans intended to be tax- qualified tax qualified, and any trusts forming a part thereof, have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans and trusts are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or qualification, materially increase its costs andor require security under Section 307 of ERISA. The Company has delivered to Parent a true, to the knowledge complete and correct copy of the Company, nothing has occurred since the date of each such determination letter that could reasonably be expected to affect the qualified status of such planand each pending application for a determination letter.
(c) Except as disclosed in the No Company Disclosure LetterPension Plan, no other than any Company Pension Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a ”Company Multiemployer Pension Plan”), had, as of the respective last annual valuation date for each such Company Pension Plan, an "“unfunded benefit liability" ” (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, and there has been no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. None of the Company Pension Plans has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, and there has not been any application for a waiver of minimum funding standards with respect to any Company Pension Plan. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or Subsidiary, any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Multiemployer Pension Plan.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is self-insured, unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) each no such Company Benefit Plan that is a "group health plan" (provides benefits after termination of employment, except as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section required by 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "“Primary Company Executives"”), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger Exchange or any other Transaction by any employee, officer current or director former Related Person of the Company or any of its affiliates who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect or Company Benefit Agreement would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(f) None and no disqualified individual is entitled to receive any additional payment from the Company, any Company Subsidiary or any other person in the event that the excise Tax under Section 4999 of the Company Benefit Plans (i) Code is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed imposed on such disqualified individual. Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive and the estimated number of shares of the Company’s Common Stock which would become vested in such Primary Company Executive (including in each case tax gross-up payments with respect thereto) as disclosed a result of the Exchange and the other Transactions under all employment, severance and termination agreements, other compensation arrangements, Company Benefit Plans and Company Benefit Agreements currently in effect and (ii) the “base amount” (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(jf) As The execution and delivery by the Company of this Agreement do not, and the consummation of the date of this AgreementExchange and the other Transactions and compliance with the terms hereof will not, the Company is not aware of (i) entitle any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees Related Person of the Company or any Company Subsidiary are represented by to any labor organization. To additional compensation, severance or other benefits, (ii) accelerate the knowledge time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.
(g) No amount payable pursuant to the terms of the Company, no labor organization Company Benefit Plans or group the Company Benefit Agreements (including by reason of employees the Exchange and the other Transactions) will be nondeductible under Section 162(m) of the Code.
(h) None of the Company or any Company Subsidiary has made any liability or obligations, including under or on account of a pending demand for recognition Company Benefit Plan or certificationCompany Benefit Agreement, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge arising out of the Company, as hiring of the date of this Agreement, there are no organizing activities involving persons to provide services to the Company or any Company Subsidiary pending with any labor organization and treating such persons as consultants or group of independent contractors and not as employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a complete and accurate list and brief description of all material "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and (sometimes referred to herein as "Company Welfare Benefit Plans"), all other Company Benefit Plans and employment agreements, which list is broken down internally by each specific country with respect to which each such Company Benefit Plan is established or maintained, or contributed to, by the .
(b) With respect to each Company or Benefit Plan (excluding any Company Subsidiary for Multi-employer Plan), the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan operative plan, trust document (or, in the case of any unwritten Company Benefit Plan, a description thereof)) and employment agreement, (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reportsperiodic report, if any, required to be filed with any governmental entity, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and or other summary material provided to any Covered Person which describes the benefits, (iv) the most recent actuarial valuation, if any, (v) the most recent financial statements; (vi) the most recent IRS determination letter, if applicable, and (vii) each trust agreement and group agreement, custodial agreement, annuity contract relating or other funding vehicle, if any.
(c) All Company Benefit Plans (excluding any Company Multi-employer Plan) are in compliance in all material respects with applicable Law (including, without limitation, the Code and ERISA and, with respect to any Company Benefit Plan.
(b) Plan maintained outside of the United States, any applicable non-U.S. law). All Company Pension Plans (excluding any Company Multi-employer Plan) which are intended to be tax- tax-qualified have been under Section 401(a) of the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans Code are so qualified and their related trusts are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Internal Revenue Code of 1986, as amended (the "Code"), except for failures to be so qualified which in the aggregate would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth in Section 3.10 of the Company Disclosure Letter, each Company Benefit Plan (excluding any Company Multi-employer Plan) has received a determination letter on the Plan as currently in effect as to its qualified status and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan.
(c) . Except as disclosed set forth in the Company Disclosure Letter, no Plan amendments since January 1, 2003 have the effect of materially increasing costs.
(d) The Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an does not participate in or make contributions to any "unfunded benefit liabilitymulti-employer plan" (as such term is defined in Section 4001(a)(183(37) of ERISA), based on actuarial assumptions that have been furnished to Parentexcept as specifically set forth in the Company Disclosure Letter (each, a "Company Multi-employer Plan"). None To the knowledge of the Company, (i) no withdrawal liability (within the meaning of Section 4201 et seq. of ERISA) would be imposed on the Company or any Company Subsidiary in the event that a "complete withdrawal" or "partial withdrawal", as such terms are respectively defined in sections 4203 and 4205 of ERISA, from a Company Multi-Employer Plan were to occur at Closing, and (ii) neither the execution of this Agreement nor any of the transactions contemplated hereunder could cause a complete withdrawal or partial withdrawal from any Company Multi-employer Plan.
(e) Except with respect to the Company Multi-Employer Plans that are Company Pension Plans Plans, neither the Company nor any Company Subsidiary has an "accumulated funding deficiency" (as such term is defined in Section 302 any liability, contingent or otherwise, under Title IV of ERISA or for any "defined benefit plan" within the meaning of Section 412 3(35) of the Code), whether or not waived. ERISA.
(f) None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension PlansPlans (excluding any Company Multi-employer Plan), any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the any material tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or 502(1502(l) of ERISA. None There are no existing or, to the knowledge of such the Company Benefit Plans and trusts has been terminatedor any Company Subsidiary, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) with respect threatened, lawsuits, claims or other controversies relating to any a Company Benefit Plan during (excluding any Company Multi-employer Plan), other than routine claims for benefits in the last five yearsnormal course. Neither To the knowledge of the Company nor and any Company Subsidiary has incurred a "complete withdrawal" as of the date hereof, no Company Benefit Plan is under any government investigation or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)audit.
(dg) With respect to any Company Welfare Benefit Plan that is an employee welfare benefit plan(excluding any Company Multi-employer Plan), (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Welfare Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies in all material respects with the applicable requirements of Section 4980B(f) of the Code Code, and (iiiii) each other than as required under Section 601 et seq. of ERISA or as set forth in Section 3.11(g)(ii) of the Company Disclosure Letter, no such Company Welfare Benefit Plan provides health or life insurance coverage following retirement or the last day of the calendar month in which any other termination of employment occurs.
(including h) Full payment has been made or will be made prior to Closing of all amounts which the Company or any such Plan covering retirees Company Subsidiary is required to pay on or other former employees) may before the Closing Date under the terms of each of the Company Benefit Plans and all amounts not payable prior to the Closing Date will be amended or terminated without material liability to properly accrued and recorded on the balance sheet of the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed Subsidiaries in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) accordance with GAAP. Except as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined set forth in Section 280G(b)(13.11(h) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither none of the medical or dental insurance policies provide for a retroactive rate adjustment or loss sharing arrangement. Except as set forth in Section 3.11(h) of the Company nor any Company Subsidiary has an obligation to adopt any new Disclosure Letter, there is no Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Planthat is a non-qualified deferred compensation arrangement.
(i) Except as disclosed set forth in the Company Disclosure Letter, as the consummation of the date transactions contemplated by this Agreement will not result in (1) the payment of this Agreementany severance, each change in control, retention bonus, or other payment to any Covered Person under any Company Benefit Plan has been operated in all material respects in accordance with its terms and or any consulting or other agreement or arrangement, or (2) the requirements of all applicable law.
(j) As acceleration of the date of this Agreement, the Company is not aware accrual or vesting of any material claims relating to the payment or benefit under any Company Benefit Plans other than claims for benefits in the ordinary coursePlan.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Kagt Holdings Inc)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary for the benefit of any current or former employees, officers or directors of the Company or any Company Subsidiary. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan Plan, had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None To the knowledge of the Company, none of the Company Pension Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None To the knowledge of the Company, none of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None During the previous five years, (i) none of such the Company Benefit Pension Plans and trusts has been terminated, nor has there been any (ii) to the knowledge of the Company, no "reportable event" (as that term is defined in Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan during the last five years. Neither Plan, and (iii) neither the Company nor any Company Subsidiary has incurred contributed or maintained, or been required to contribute or maintain, a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), ) and (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed . Set forth in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
Letter is (i) Except the estimated maximum amount that could be paid to each Primary Company Executive as disclosed a result of the Merger and the other Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect and (ii) the estimated "base amount" (as defined in Section 280G(b)(3) of the Code) for each Primary Company Disclosure Letter, Executive calculated as of the date of this AgreementAgree ment, each Company Benefit Plan has been operated in all material respects in accordance with its terms and assuming that the requirements of all applicable lawTransactions occur after December 31, 1998.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 2.18(a) of the Company Disclosure Letter contains a complete and correct list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other each material Company Benefit Plans maintainedPlan, or contributed to, by material Company Benefit Agreement and Company Multiemployer Plan. Each material Company Benefit Plan and material Company Benefit Agreement has been administered in all material respects in compliance with its terms and applicable Law and the Company or any Company Subsidiary for the benefit terms of any current or former employees, officers or directors of the Company or any Company Subsidiaryapplicable collective bargaining agreements. The Company has made available to Parent true, Investor complete and correct copies of (i) each Company Benefit Plan (or, or in the case of any unwritten material Company Benefit PlanPlan or material Company Benefit Agreement, a description thereof)) of (i) each material Company Benefit Plan and material Company Benefit Agreement, (ii) the two most recent annual report on Form 5500 reports required to be filed with the Internal Revenue Service any Governmental Entity, with respect to each material Company Benefit Plan (if any such report was required) including reports filed on Form 5500 with accompanying schedules and actuarial reports, if anyattachments), (iii) the most recent summary plan description for each material Company Benefit Plan for which such a summary plan description is required and under applicable Law, (iv) each trust agreement and group annuity contract and other material documents relating to the funding or payment of benefits under any material Company Benefit Plan, (v) the most recent determination or qualification letter issued by any Governmental Entity for each Company Pension Plan intended to qualify for favorable tax treatment, as well as a complete and correct copy of each pending application for a determination or qualification letter, if applicable, and a complete and correct list of all material amendments to any Company Pension Plan as to which a favorable determination letter has not yet been received and (vi) the two most recent actuarial valuations for each Company Benefit PlanPlan for which such valuations are required.
(b) All The Company Pension Plans intended to be tax- qualified have been the subject of has received determination letters from the Internal Revenue Service for all Company Pension Plans intended to be tax qualified to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended or failed to be amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Neither the Company nor any other person or entity that, together with the Company or any Company Subsidiary, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or any other applicable Law (a “Commonly Controlled Entity”) has sponsored, maintained or contributed to, or been obligated to maintain or contribute to, or has any liability under, any Company Pension Plan that is subject to Title IV of ERISA or Section 412 of the Code or is otherwise a defined benefit pension plan. Except as disclosed set forth on the Balance Sheet or in the notes thereto in the Filed Company Disclosure LetterSEC Documents, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "a material “unfunded benefit liability" ” (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have and there has been furnished no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. No liability under Title IV of ERISA or Section 412 of the Code (other than for premiums to Parentthe Pension Benefit Guaranty Corporation) has been or is expected to be incurred by the Company or any Company Subsidiary with respect to any ongoing, frozen or terminated “single-employer” plan (as defined in Section 4001(a)(15) of ERISA), currently or formerly maintained by any of them or by any Commonly Controlled Entity. None of the Company Pension Plans has an "accumulated failed to satisfy the minimum funding deficiency" standards (as such term is defined described in Section 302 of ERISA or Section 412 of the Code), whether or not waived, nor has any waiver of the minimum funding standards of Section 302 of ERISA or Section 412 of the Code been requested. None of the Company, any Company Subsidiary, any officer employee of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISAPlans, including the Company Pension Plans, or any trusts created thereunder or any trustee trustee, administrator or administrator thereofother fiduciary of any Company Benefit Plan or trust created thereunder, or any agents of the foregoing, has engaged in a "non-exempt “prohibited transaction" ” (as such term is defined described in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could would be reasonably expected to subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans, or, to the knowledge of the Company, any trusts created thereunder or any trustee or administrator of any Company Benefit Plan or trust created thereunder, to any material tax or material penalty on prohibited transactions imposed by such Section 4975 of the Code or to the sanctions imposed under Title I of ERISA or to any other material liability for breach of fiduciary duty under Section 502(iERISA or any other applicable law. In addition, (i) no Company Pension Plan or 502(1) of ERISA. None of such Company Benefit Plans and trusts related trust has been terminated, nor terminated during the last five years and (ii) there has there been any "no “reportable event" ” (as that term is defined in Section 4043 of ERISA, other than an event for which the 30-day notice period is waived) with respect to any Company Benefit Pension Plan during the last five yearssince June 3, 2007. Neither No Multiemployer Plan to which the Company nor contributes or has contributed (a “Company Multiemployer Plan”) has asserted that any of the Company, a Company Subsidiary or a Commonly Controlled Entity has incurred any material liability that has not been satisfied in full as a "result of a “complete withdrawal" ” or a "“partial withdrawal" ” (as each such terms are term is defined in Sections 4203 and 4205, respectively, of ERISA) since during the effective date of past four years from any such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)Company Multiemployer Plan.
(d) With respect to any material Company Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, (i) no each such material Company Benefit Plan is unfunded or either funded through an insurance company contract and is not a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that or is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.unfunded and
Appears in 1 contract
Samples: Investment Agreement (Interstate Bakeries Corp/De/)
ERISA Compliance; Excess Parachute Payments. (a) The Section 4.12(a) of the Company Disclosure Letter Schedule contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(13(l) of ERISA) (sometimes referred to herein as "Company Welfare Plans") and all other Company Benefit Plans maintained, or contributed to, by the Company or any Company Subsidiary Commonly Controlled Entity for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCommonly Controlled Entity. The Company has provided or made available to Parent true, complete and correct copies of (i) each Company Benefit Plan except for any Company Benefit Plan that is a "Company Multiemployer Pension Plan" (as defined below) and each Company Welfare Plan except for any Company Welfare Plan that is a "Multiemployer Plan" as defined in Section 3(3) of ERISA (a "Company Multiemployer Welfare Plan") (or, in the case of any such unwritten Company Benefit Plan, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan which is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan which is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan, (v) all rulings, determination letters, no-action letters or advisory opinions from the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental body that pertain to any Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan and open requests therefor, (vi) the most recent actuarial and financial reports (audited and/or unaudited) with respect to each Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan for the most recently completed year, (vii) all registration statements filed, and all related prospectuses, with respect to any Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan, and (viii) all contracts with third party administrators, actuaries, investment managers, consultants, and other independent contractors that related to any Company Benefit Plan that is not a "Company Multiemployer Pension Plan" (as defined below) or a Company Multiemployer Welfare Plan.
(b) All Except as set forth in Section 4.12(b) of the Company Disclosure Schedule, each Company Pension Plans intended to be tax- qualified have Plan that is not a "Company Multiemployer Pension Plan" (as defined below) has been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, Company or of any Commonly Controlled Entity has revocation been threatened, nor has any such Company Pension Plan employee pension benefit plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in the Company Disclosure Letter, no No Company Pension Plan other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001 (a)(3) of ERISA (a "Company Multiemployer Pension Plan") had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, that would have a Material Adverse Effect on Company. None of the Company Pension Plans that is not a Company Multiemployer Pension Plan has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company SubsidiaryCommonly Controlled Entity, any officer of the Company or of any of its Company Subsidiary Commonly Controlled Entity or any of the Company Benefit Plans which that are subject to ERISA, including the Company Pension Plans which are not Company Multiemployer Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary Commonly Controlled Entity or any officer of the Company or of any Company Subsidiary Commonly Controlled Entity to the any tax or penalty on prohibited transactions imposed by such Section 4975 that would have a Material Adverse Effect on Company or to any liability under Section 502(i) or 502(1502(l) of ERISAERISA that would have a Material Adverse Effect on Company. None of such Company Benefit Pension Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA, but excluding any reportable event as to which the provision of thirty days notice to the Pension Benefit Guaranty Corporation is waived under applicable regulations) with respect to any Company Benefit Pension Plan during the last five years. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit planplan but not a Company Multiemployer Welfare Plan, except as disclosed in Section 4.12(d) of Company Disclosure Schedule, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), and (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary or any Commonly Controlled Entity on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in Section 4.12(e) of the Company Disclosure Letter Schedule (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any other Transaction transaction contemplated hereby by any employee, officer or director of the Company or any of its affiliates Commonly Controlled Entity who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Each Company Benefit Plans (i) Plan is in form and substance, and has been operated, in full compliance with applicable law except where any non-compliance would not have a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law)Material Adverse Effect on Company.
(g) None Except as set forth in Section 4.12(g) of the Company Disclosure Schedule, there are no pending or, to the knowledge of Company, threatened claims, suits, investigations or audits involving any Company Benefit Plans provides Plan (other than claims for payment of benefits in the ordinary course) except for such pending or threatened actions that would not have a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the TransactionsMaterial Adverse Effect on Company.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation With respect to adopt any new each Company Benefit Plan ormandated by a government other than the United States, except as required subject to laws of a jurisdiction outside of the United States, or maintained or contributed to by lawany Commonly Controlled Entity that is not subject to United States law (collectively, "Foreign Benefit Plans"), the amendment fair market value of an existing Company the assets of each funded Foreign Benefit Plan.
(i) Except as disclosed in , the Company Disclosure Letterliability of each insurer for any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, each Company with respect to all current and former participants in such Foreign Benefit Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Benefit Plan, except where such insufficiency would not have a Material Adverse Effect on Company, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations, except where such insufficiency would not have a Material Adverse Effect on Company.
(i) Neither Company nor any Commonly Controlled Entity has been operated ceased operations at any facility or has withdrawn from any Company Pension Plan that is subject to Title IV of ERISA in all material respects in accordance with its terms and the requirements a manner that would subject Company or any Commonly Controlled Entity to liability under any provision of all applicable lawTitle IV of ERISA, except where such liability would not have a Material Adverse Effect on Company.
(j) As Except as disclosed on Section 4.12(j) of the date Company Disclosure Schedule, neither Company nor any Commonly Controlled Entity is required to contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of this AgreementERISA) or has withdrawn from any multiemployer plan where such withdrawal has resulted or would result in any "withdrawal liability" (within the meaning of Section 4201 of ERISA) that has not been fully paid, the except where such contribution or "withdrawal liability" would not have a Material Adverse Effect on Company. Not more than 600 employees of Company is not aware and any Commonly Controlled Entity are participants in any "multiemployer plan" (as defined in Section 4001(a)(3) of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary courseERISA).
(k) Neither Except to the extent required by Section 601 ET SEQ. of ERISA and Section 4980B of the Code, neither Company nor any Company Subsidiary Commonly Controlled Entity provides health or welfare benefits to any retired or former employee or is party obligated to a collective bargaining agreement, and no employees provide health or welfare benefits to any active employee following such employee's retirement or other termination of the Company service except where provision of or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing obligation to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out ofprovide such benefits, in connection withthe aggregate, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to would not have a Company Material Adverse EffectEffect on Company.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.11(a) of the Company Disclosure Letter contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Company Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and Company Benefit Agreements maintained, or contributed to, by the Company or any to which the Company Subsidiary is a party, for the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCompany. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if any), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit PlanPlan and (v) each employment agreement to which the Company is a party or is bound.
(b) All Company Pension Plans intended to be tax- qualified have been the subject of received favorable determination letters from the Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39), to the effect that such Company Pension Plans are qualified and exempt from Federal federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent determination letter or application therefor in any respect that would materially adversely affect its qualification or materially increase its costs andcosts. There is no material pending or, to the knowledge of the Company, nothing has occurred since threatened litigation relating to the date of such letter that could reasonably be expected to affect the qualified status of such planCompany Benefit Plans.
(c) Except as disclosed in the No Company Disclosure LetterPension Plan, no other than any Company Pension Plan that is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Company Multiemployer Pension Plan"), had, as of the respective last annual valuation date for each such Company Pension Plan, an any "unfunded benefit liabilityliabilities" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, and there has been no material adverse change in the financial condition of any Company Pension Plan since its last such annual valuation date. None No liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the Company Pension Plans has an with respect to any ongoing, frozen or terminated "accumulated funding deficiencysingle-employer plan," (as such term within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by it, or the single-employer plan of any entity which is defined in considered one employer with the Company under Section 302 4001 of ERISA or Section 412 414 of the CodeCode (an "ERISA Affiliate"), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1502(l) of ERISA. None of such Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of 17 24 ERISA) for which the 30-day reporting requirement has not been waived with respect to any Company Benefit Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the Transactions. Neither the The Company nor any Company Subsidiary has not incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension Company Multiemployer Pension Plan. All contributions and premiums required to be made under the terms of any Company Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent balance sheet filed or incorporated by reference in the Filed Company SEC Documents. Neither any Company Pension Plan nor any single-employer plan of an ERISA Affiliate has an "accumulated funding deficiency" (within as such term is defined in Section 302 of ERISA or Section 412 of the meaning of Section 4001(a)(3) of ERISACode), whether or not waived.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits benefit fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), ) complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Company Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time. The Company has no obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(e) Except as disclosed in Section 3.11(e) of the Company Disclosure Letter, the consummation of the Offer, the Merger or any other Transaction will not (x) entitle any employee, officer or director of the Company to severance pay or an election to terminate and receive severance pay, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit Agreements or (z) result in any breach or violation of, or a default under, any of the Company Benefit Plans or Company Benefit Agreements.
(f) Other than payments that may be made to the persons listed in Section 3.11(f) of the Company Disclosure Letter (the "Primary Company Executives"), (i) any amount or economic benefit that could be received (whether in cash or property or the vesting of property) under any Company Benefit Plan or Company Benefit Agreement or otherwise as a result of the Merger Offer, the Merger, any Transaction or any other Transaction event (including upon, as a result of or in connection with a termination of employment on or following the Effective Time) by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or , and (ii) promises or provides retiree medical or life insurance benefits no disqualified individual is entitled to receive any person (other than as required by law).
(g) None of the Company Benefit Plans provides for additional payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of from the Company or any Company Subsidiary are represented by any labor organization. To other person in the knowledge event that the excise tax under Section 4999 of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company SubsidiaryCode is imposed on such disqualified individual.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Usx Corp)
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains a list and brief description of all "“employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to herein as "“Company Pension Plans"”), "“employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other Company Benefit Plans maintainedand Company Benefit Agreements. Each Company Benefit Plan has been administered in compliance with its terms and with applicable Law (including, or contributed towithout limitation, by ERISA and the Company or any Company Subsidiary for Code) and the benefit terms of any current or former employees, officers or directors of the Company or any Company Subsidiaryall applicable collective bargaining agreements in all material respects. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a description thereof)) and Company Benefit Agreement, (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was required) and actuarial reports, if anyrequired by applicable Law), (iii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and required, (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan, (v) the most recent determination letter received from the Internal Revenue Service with respect to each Company Benefit Plan that is intended to be a “qualified” plan under Sections 401(a) and 501(a) of the Code and (vi) the most recently prepared actuarial valuation report and audited financial statements in connection with each Company Benefit Plan for which an actuarial valuation report or audited financial statements were required to be prepared under applicable Law.
(b) All Company Pension Plans that are intended to be tax- qualified for Federal income tax purposes have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended, or has failed to have been amended in order to comply with applicable Law, since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plancosts.
(c) Except as disclosed in None of the Company Disclosure LetterPension Plans are subject to Section 302 or Title IV of ERISA or Section 412 of the Code. With respect to the Company, no any Company Subsidiary and any other Company Commonly Controlled Entity, there does not exist, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would reasonably be expected to become a liability, at or after the Closing, of the Company, any Company Subsidiary or any other Company Commonly Controlled Entity , in each case except as would not reasonably be expected to result in a Company Material Adverse Effect. For purposes of this Agreement, “Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, other than for payment of premiums to the Pension Benefit Guaranty Corporation, (ii) under Section 302, 4062, 4063, 4064, 4068 or 4069 of ERISA, (iii) under Section 412(n) or 4971 of the Code and (iv) for violation of the continuation coverage requirements of Sections 601 et seq. of ERISA and Section 4980B of the Code or the group health requirements of Sections 701 et seq. of ERISA and Sections 9801 et seq. of the Code. No Company Pension Plan, other than any Company Pension Plan that is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”)), had, as of the respective last annual valuation date for each such Company Pension Plan, an "“unfunded benefit liability" ” (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Plans has an "“accumulated funding deficiency" ” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and or trusts created thereunder has been terminated, nor has there been any "“reportable event" ” (as that term is defined in Section 4043 of ERISA) with respect to any Company Benefit Plan during the last five yearsyears and no notice of a reportable event will be required to be filed in connection with the transactions contemplated hereby. Neither None of the Company nor Company, any Company Subsidiary or any Company Commonly Controlled Entity has incurred a "“complete withdrawal" ” or a "“partial withdrawal" ” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA).
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective Time.
(e) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Multiemployer Pension Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Section 3.20(a) of the Company Disclosure Letter contains a list and brief description of all "Company Benefit Plans and Company Benefit Agreements, including any “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended 1974 ("“ERISA"”)) (sometimes referred to herein as "“Company Pension Plans"), "”) and “employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) ). Each Company Benefit Plan and Company Benefit Agreement has been administered in material compliance with its terms and with the requirements of Law, including ERISA and the Code. No action, claim or Proceeding is pending or, to the Knowledge of the Company, threatened with respect to any Company Benefit Plan or Company Benefit Agreement that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. All contributions required to be made to each Company Benefit Plan and Company Benefit Agreement have been timely made and all other obligations in respect of each Company Benefit Plans maintained, or contributed to, by Plan and Company Benefit Agreement have been properly accrued and reflected on the Company or any Company Subsidiary for Company’s financial statements that would not result in a material liability to the benefit of any current or former employees, officers or directors of the Company or any Company SubsidiaryCompany. The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan and Company Benefit Agreement and all amendments thereto (or, in the case of any unwritten Company Benefit PlanPlan or Company Benefit Agreement, a description thereof), (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan, to the extent applicable, for the two most recent plan years (A) the annual report on Form 5500 and attached schedules, (B) audited financial statements of such Company Benefit Plan and (if any such report was requiredC) and actuarial valuation reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan (or other written explanation provided to employees in the case of a Company Benefit Plan for which such summary plan description is required and not required), (iv) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan intended to be qualified under Section 401(a) of the Code, (v) any request for a determination currently pending before the IRS, (vi) all correspondence with the IRS, the Department of Labor, the SEC, Pension Benefit Guaranty Corporation or other Governmental Entity relating to any outstanding controversy or audit relating to a Company Benefit Plan or Company Benefit Agreement, and (vii) each trust agreement and trust, insurance, administrative or group annuity contract relating to any Company Benefit Plan.
(b) All Company Pension Plans that are intended to be tax- qualified under Section 401(a) of the Code are so qualified and have been the subject of determination or opinion letters from the Internal Revenue Service IRS to the effect that such Company Pension Plans are so qualified and all related trusts that are intended to be exempt from Federal federal income taxes under Sections 401(aSection 501(a) and 501(a), respectively, of the CodeCode have been the subject of determination or opinion letters from the IRS to the effect that such trusts are so exempt, and no such determination or opinion letter has been revoked nor, to the knowledge Knowledge of the Company, has revocation been threatenedthreatened or any fact or event occurred that would reasonably be expected to adversely affect the qualified status of any such Company Pension Plan or the exempt status of any such trust, nor has any such Company Pension Plan been amended since the date of its most recent determination or opinion letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, costs. Neither the Company nor any Company Subsidiary has any liability or obligation under any Company Benefit Plan or Company Benefit Agreement to provide benefits after termination of employment to any current or former employee (including retirees) or dependent other than as required by Section 4980B of the knowledge Code. None of the Company, nothing any Company Subsidiary or any of their respective ERISA Affiliates has occurred since any liability for a failure to comply with Section 4980B of the date Code or Part 6 of such letter that could reasonably be expected to affect the qualified status Subtitle B of such planTitle I of ERISA.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company, any Company Pension Plans Subsidiary or any of their respective ERISA Affiliates currently maintains, contributes to or has an "accumulated funding deficiency" any liability under or, at any time during the past six (as such term 6) years has maintained or contributed to, any plan which is defined in subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. None of the Company, any Company Subsidiary or any of their respective ERISA Affiliates currently maintains, contributes to or has any liability under or, at any time during the past six (6) years has maintained or contributed to, any multiemployer plan (as defined in Section 412 4001(a)(3) of ERISA) or multiple employer plan (as described in Section 413 of the Code), whether or not waived. None of the Company, any Company Subsidiary, any officer of the Company Company, or any of its Company Subsidiary or Subsidiary, any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject responsibility. No Company Benefit Plan is or has been funded by, associated with or related to a voluntary employees’ beneficiary association (within the Company, any meaning of Section 501(c)(9) of the Code). No Company Subsidiary or any officer Benefit Plan holds the stock of the Company or any Company Subsidiary to the tax or penalty on prohibited transactions imposed by such Section 4975 or to as a plan asset.
(d) Neither AmRisc nor any liability under Section 502(i) or 502(1) of ERISA. None of such other Person that is not a Company Benefit Plans and trusts has been terminated, nor has there been any "reportable event" (as that term Subsidiary is defined in Section 4043 of ERISA) an ERISA Affiliate with respect to the Company or any Company Subsidiary.
(e) No Company Benefit Plan during or Company Benefit Agreement is subject to or governed by the last five yearsLaws of any jurisdiction other than the United States.
(f) With respect to any arrangement of the Company or any Company Subsidiary that is subject to Section 409A of the Code, (i) the written terms of such arrangement has at all times since January 1, 2013 been in material compliance with, and (ii) such arrangement has, at all times while subject to Section 409A of the Code, been operated in material compliance with, Section 409A of the Code and all applicable guidance thereunder. Neither the Company nor any Company Subsidiary has incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 any obligation to provide any gross-up payment to any individual with respect to any multiemployer pension plan (within income tax, additional tax or interest charge imposed pursuant to Section 409A of the meaning of Section 4001(a)(3) of ERISA)Code.
(dg) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "“welfare benefits fund" ” (as such term is defined in Section 419(e) of the Code), ) and (ii) each such Company Benefit Plan that is a "“group health plan" ” (as such term is defined in Section 5000(b)(1) of the Code), ) complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeCode.
(eh) Other than payments that may be made to the persons listed in the Company Disclosure Letter (the "Primary Company Executives"), any No amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or Mergers and any other Transaction Transactions by any employee, officer or director of the Company or any of its affiliates Affiliates who is a "“disqualified individual" ” (as such term is defined in proposed U.S. Treasury Regulation Section 1.280G-1) under ), either alone or together with any employmentother event, severance or termination agreement, other compensation arrangement or Company Benefit Plan currently in effect would not be characterized as an "excess a “parachute payment" ” (as defined in Section 280G(b)(1) 280G of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither . Neither the Company nor any Company Subsidiary has an any obligation to adopt provide any new Company Benefit Plan orgross-up payment to any individual with respect to any income tax, except as required by law, additional tax or interest charge imposed pursuant to Section 4999 of the amendment of an existing Company Benefit PlanCode.
(i) Except as disclosed in The execution, delivery and performance by the Company Disclosure Letterof this Agreement do not, as and the consummation of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms Mergers and the requirements of all applicable law.
other Transactions and compliance with the terms hereof and thereof will not (ji) As of the date of this Agreemententitle any employee, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees officer or director of the Company or any Company Subsidiary are represented by to any labor organization. To severance, transaction bonus, retention or other payment, (ii) accelerate the knowledge time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the Companyamount payable or trigger any other material obligation pursuant to, no labor organization or group of employees of the Company or any Company Subsidiary has made Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or a pending demand for recognition or certificationdefault under, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization Benefit Plan or group of employees of the Company or any Company SubsidiaryBenefit Agreement.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) The Company Disclosure Letter contains sets forth a list true and brief description complete list, as of the date of this Agreement, of all "material Company Benefit Plans that are “employee pension benefit plans" ” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "“Company Pension Plans"”), "all material Company Benefit Plans that are “employee welfare benefit plans" ” (as defined in Section 3(1) of ERISA) and all other material Company Benefit Plans maintainedand all material Company Benefit Agreements. Each Company Benefit Plan has been administered in compliance with its terms and applicable Law (including ERISA and the Code), or contributed toother than instances of noncompliance that, by individually and in the Company or any Company Subsidiary for the benefit of any current or former employeesaggregate, officers or directors of the Company or any Company Subsidiaryhave not had and would not reasonably be expected to have a Material Adverse Effect. The Company has made available to Parent true, complete and correct accurate copies of (i) each material Company Benefit Plan (or, in the case of any unwritten and each material Company Benefit PlanAgreement, a description thereof)other than any Company Benefit Plan or Company Benefit Agreement that the Company or any Company Subsidiary is prohibited from making available to Parent as the result of applicable Laws relating to the safeguarding of data privacy, (ii) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if any such report was requiredrequired by applicable Law) and actuarial reports, if any, (iii) the most recent summary plan description for each Company Benefit Plan for which such a summary plan description is required and (iv) each trust agreement and group annuity contract relating to any by applicable Law or, for Company Benefit PlanPlans for which a summary plan description is not so required, such other written description of such Company Benefit Plan provided to participants therein, if any.
(b) All Except as disclosed in the Company Disclosure Letter, all Company Pension Plans that are intended to be tax- qualified for United States Federal income tax purposes have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Pension Plans are so qualified and exempt from United States Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened. The Company has made true, nor has any such Company Pension Plan been amended since complete and accurate copies of the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs and, to the knowledge of the Company, nothing has occurred since the date of such letter that could reasonably be expected determination letters available to affect the qualified status of such planParent.
(c) Except as disclosed in the Company Disclosure Letter, no Company Pension Plan had, as of the respective last annual valuation date for each such Company Pension Plan, an "unfunded benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent. None of the Company Pension Benefit Plans has an "accumulated funding deficiency" (as such term is defined in subject to Section 302 or Title IV of ERISA or Section 412 of the Code. None of the Company, any Company Subsidiary or any other person or entity under common control with the Company within the meaning of Section 414(b), whether (c), (m) or (o) of the Code (a “Company ERISA Affiliate”) sponsors, participates in, or is required to contribute to, any Multiemployer Plan or any plan subject to Title IV of ERISA or Section 412 or 4971 of the Code.
(d) Except as individually or in the aggregate has not waived. None had and would not reasonably be expected to have a Material Adverse Effect, (i) none of the Company, any Company Subsidiary, any officer of the Company or any of its Company Subsidiary or any of the Company Benefit Plans which are Plan that is subject to ERISA, including the any Company Pension PlansPlan, or, to the knowledge of the Company, any trusts trust created thereunder or any trustee or administrator thereof, has engaged in a "“prohibited transaction" ” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the tax Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any liability under Section 502(i) or 502(1) of ERISA. None of such ; (ii) there are no unresolved claims or disputes under the terms of, or in connection with, any Company Benefit Plans and trusts Plan or Company Benefit Agreement other than claims for benefits which are payable in the ordinary course of business; (iii) no litigation has been terminated, nor has there been any "reportable event" (as that term is defined in Section 4043 of ERISA) commenced with respect to any Company Benefit Plan during or Company Benefit Agreement and, to the last five years. Neither knowledge of the Company, no such litigation is threatened (other than routine claims for benefits in the normal operation of such Company Benefit Plan or Company Benefit Agreement); and (iv) there are no audits or investigations by any Governmental Entity pending or, to the knowledge of the Company, threatened in connection with any Company Benefit Plan or Company Benefit Agreement.
(e) No Company Benefit Plan provides health benefits (whether or not insured) with respect to employees or former employees (or any of their beneficiaries) of the Company or any Company Subsidiary after retirement or other termination of service (other than coverage or benefits (i) required to be provided under Part 6 of Title I of ERISA or any other similar applicable Law or (ii) the full cost of which is borne by the employee or former employee (or any of their beneficiaries)).
(f) Except as may be required by applicable Law or as permitted under this Agreement, neither the Company nor any Company Subsidiary has incurred announced any plan or commitment to create any additional material Company Benefit Plans or to enter into any additional material Company Benefit Agreements or to materially amend or modify any existing Company Benefit Plan or Company Benefit Agreement in such a "complete withdrawal" manner as to materially increase the costs to the Company or any Company Subsidiary.
(g) Except as provided in this Agreement or as required under applicable Law, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (either alone or together with any other event): (i) result in any material payment (including any bonus, severance, unemployment compensation, deferred compensation, forgiveness of indebtedness or golden parachute payment) becoming due to any current or former employee under any Company Benefit Plan or Company Benefit Agreement; (ii) increase in any material respect any benefit otherwise payable under any Company Benefit Plan or Company Benefit Agreement; (iii) result in the acceleration in any material respect of the time of payment or vesting of any material benefits under any Company Benefit Plan or Company Benefit Agreement; or (iv) result in any obligation to contribute a "partial withdrawal" (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 material amount to fund any trust or other arrangement with respect to any multiemployer pension plan (within the meaning of Section 4001(a)(3) of ERISA)compensation or benefits under a Company Benefit Plan or Company Benefit Agreement.
(dh) With respect Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any Company Subsidiary has classified any individual as an independent contractor or similar status who, according to any Company Benefit Plan that is or Company Benefit Agreement or applicable Law, should have been classified as an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a "welfare benefits fund" (as such term is defined in Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code), complies with the applicable requirements of Section 4980B(f) of the Code and (iii) each such or any Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and the Company Subsidiary on or at any time after the Effective TimeSubsidiary.
(ei) Other than payments that may be made to the persons listed in Schedule 3.12(i) of the Company Disclosure Letter (the "Primary Company Executives")Letter, any amount that could be received (whether in cash or property or the vesting of property) as a result of the Merger or any other Transaction transactions contemplated by this Agreement by any employee, officer or director of the Company or any of its affiliates who is a "“disqualified individual" ” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Company Benefit Plan or Company Benefit Agreement currently in effect would not be characterized as an "“excess parachute payment" ” (as defined in Section 280G(b)(1) of the Code).
(f) None of the Company Benefit Plans (i) is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or (ii) promises or provides retiree medical or life insurance benefits to any person (other than as required by law).
(g) None of the Company Benefit Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the Transactions.
(h) Except as disclosed in the Company Disclosure Letter, neither the Company nor any Company Subsidiary has an obligation to adopt any new Company Benefit Plan or, except as required by law, the amendment of an existing Company Benefit Plan.
(i) Except as disclosed in the Company Disclosure Letter, as of the date of this Agreement, each Company Benefit Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.
(j) As of the date of this Agreement, the Company is not aware of any material claims relating to the Company Benefit Plans other than claims for benefits in the ordinary course.
(k) Neither the Company nor any Company Subsidiary is party to a collective bargaining agreement, and no employees of the Company or any Company Subsidiary are represented by any labor organization. To the knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, as of the date of this Agreement, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary.
(l) There are no complaints, charges or claims against the Company or any Company Subsidiary pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any Company Subsidiary which, if resolved against the Company or any Company Subsidiary, as the case may be, could reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
