ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a)(i) of the Company Disclosure Schedule sets forth a complete and accurate 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 (including in such description the number of participants in each such plan and the cost to the Company to maintain each such plan), each as of February 28, 2005 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 or Company Benefit Agreement a description thereof), (ii) the three most recent annual reports on Form 5500 filed with the Department of Labor with respect to each Company Benefit Plan (if any such report was required), as well as copies of all other filings made with the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation for each Company Benefit Plan’s most recent three plan years, (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, group annuity and any other material contract relating to any Company Benefit Plan. (b) All Company Pension Plans that are intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) have received favorable determination letters from the Internal Revenue Service with respect to TRA (as defined in Section I 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Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Company Pension Plan been amended since the date of its most recent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. (c) With respect to all Company Benefit Plans, the reporting, disclosure and other requirements of ERISA and the Code, as applicable, have been fulfilled in all material respects. (d) There are no pending or, to the knowledge of the Company, threatened claims, investigations, proceedings, suits, litigation or other actions by, on behalf of, against, or otherwise affecting, involving or in any way relating to any of the Company Benefit Plans or the Company Benefit Arrangements, and, to the knowledge of the Company, there are no facts or set of circumstances to the knowledge of the Company that has resulted in or would result in any such claims, investigations, proceedings, suits, litigation or actions. (e) No Company Pension Plan is subject to Title IV of ERISA or the minimum funding requirements of Section 302 of ERISA or Section 412 of the Code, and neither the Company nor any Company Subsidiary or any of their respective affiliates have any actual or contingent liability under any plan (whether or not currently sponsored, maintained or contributed to by any such entity) that is or was subject to such provisions of ERISA or the Code. (f) None of the Company, any Company Subsidiary, any officer of the Company or any 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 defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that would 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(l) of ERISA. (g) All contributions and premiums required to be made under the terms of any Company Benefit Plan as of February 28, 2005 have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed SEC Documents. (h) No Company Pension Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”), and neither the Company nor any Company Subsidiary has any actual or contingent liability under any former Company Multiemployer Pension Plan. (i) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is funded through a “welfare benefit fund” (as defined in 20 Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a “group health plan” (as 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 Subsidiaries on or at any time after the Effective Time. (j) Neither the Company nor any Company Subsidiary have any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement. (k) Except with respect to accelerated vesting of Company Stock Options under the Company Stock Plans (excluding the Retek Inc. 1999 Employee Stock Purchase Plan (the “Company ESPP”)), the consummation of the Offer, the Merger or any other Transaction will not (i) entitle any employee, 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. (l) Other than payments that may be made to the persons listed in the Company Disclosure Schedule (the “Primary Company Executives”), any amount or economic benefit that would 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 defined in proposed Treasury Regulation Section 1.280G-1) under any Company Benefit Plan or Company Benefit Agreement or otherwise 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 Company Subsidiary 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 the Company Disclosure Schedule are (i) the estimated maximum amount that would be paid to each Primary Company Executive as 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 Executive calculated as of February 28, 2005.
Appears in 2 contracts
Samples: Merger Agreement (Ruby Merger Corp.), Merger Agreement (Retek Inc)
ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a)(i3.11(a) of the Company Disclosure Schedule sets forth Letter contains a complete and accurate 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 and Company Benefit Agreements (including in such description the number of participants in each such plan and the cost to the Company to maintain each such plan), each as of February 28, 2005 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 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 Plan Plans or Company Benefit Agreement a description Agreements, written descriptions thereof), (ii) the three two most recent annual reports on Form 5500 required to be filed, or such similar reports, statements, information returns or material correspondence filed with the Department of Labor or delivered to any Governmental Entity, with respect to each Company Benefit Plan (if any such report was requiredincluding reports filed on Form 5500 with accompanying schedules and attachments), as well as copies of all other filings made with the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation for each Company Benefit Plan’s most recent three plan years, (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 insurance, group annuity contract and any other material contract 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. All Participant data necessary to administer each Company Benefit Plan, other than any Company Benefit Plan that is a Company Multiemployer Pension Plan, and Company Benefit Agreement is in the possession of the Company and is in a form that is sufficient for the proper administration of the Company Benefit Plans and Company Benefit Agreements in accordance with their terms and all applicable Laws and such data is complete and correct in all material respects.
(b) All Company Pension Plans that are intended (other than Company Multiemployer Pension Plans (as defined in Section 3.11(c)), and, to be qualified under Section 401(a) the knowledge of the Internal Revenue Code Company, each Company Multiemployer Pension Plan have been the subject of 1986, as amended (the “Code”) have received favorable determination letters from the Internal Revenue Service with respect to TRA (as defined in Section I 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 costscosts or require security under Section 307 of ERISA. No Company Pension Plans are required to have been approved by any non-U.S. Governmental Entity.
(c) With respect During the past six years neither the Company nor any Commonly Controlled Entity has maintained, contributed to all or been obligated to maintain or contribute to, or has any actual or contingent liability under, any Company Benefit Plans, the reporting, disclosure and other requirements of ERISA and the Code, as applicable, have been fulfilled in all material respects.
(d) There are no pending or, to the knowledge of the Company, threatened claims, investigations, proceedings, suits, litigation or other actions by, on behalf of, against, or otherwise affecting, involving or in any way relating to any of the Company Benefit Plans or the Company Benefit Arrangements, and, to the knowledge of the Company, there are no facts or set of circumstances to the knowledge of the Company Plan that has resulted in or would result in any such claims, investigations, proceedings, suits, litigation or actions.
(e) No Company Pension Plan is subject to Title IV of ERISA or ERISA, other than any Company Pension Plan that is a “multiemployer plan” within the minimum funding requirements meaning of Section 302 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”). There have been no non-exempt “prohibited transactions” (as such term is defined in Section 406 of ERISA or Section 412 4975 of the Code, and neither the Company nor ) with respect to any Company Subsidiary Benefit Plan that is subject to ERISA or any other breach of their respective affiliates have any actual or contingent liability under any plan (whether or not currently sponsored, maintained or contributed fiduciary responsibility that could reasonably be expected to by any such entity) that is or was subject to such provisions of ERISA or the Code.
(f) None of the Company, any Company Subsidiary, Subsidiary or any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including or, to the Company Pension Plansknowledge of the Company, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that would subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary 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(l502(1) of ERISA.
(g) All contributions and premiums required ERISA or to be made any other material liability for breach of fiduciary duty under the terms of ERISA or any Company Benefit Plan as of February 28, 2005 have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed SEC Documents.
(h) other applicable Law. No Company Pension Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”), and neither or related trust has been terminated. Neither the Company nor any Company Subsidiary has incurred any actual liability that remains unsatisfied with respect to a “complete withdrawal” or contingent liability under 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 former Company Multiemployer Pension Plan.
(id) 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 funded through a “welfare benefit benefits fund” (as such term is defined in 20 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 ), complies, in all material respects respects, with the applicable requirements of Section 4980B(f) of the Code and or any similar state statute, (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 eligible dependents or beneficiaries) or as required by Section 4980B(f) of the Code or any similar state statute, (iv) 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 Subsidiaries Subsidiary on or at any time after the Effective TimeTime and (v) Section 3.11(d)(v) of the Company Disclosure Letter indicates whether each welfare plan is self-insured or insured through third-party coverage.
(je) Neither No amount or other entitlement that could be received (whether in cash or property or the Company nor vesting of property) as a result of any Company Subsidiary have of the transactions contemplated hereby (alone or in combination with any obligations for retiree health and life benefits other event) by any Participant who is a “disqualified individual” (as such term is defined in final Treasury Regulation Section 1.280G-1) (each, a “Disqualified Individual”) under any Company Benefit Plan or Plan, Company Benefit AgreementAgreement or other compensation arrangement currently in effect would be characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code) and no such disqualified individual 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 disqualified individual.
(kf) Except with respect to accelerated vesting of Company Stock Options under The execution and delivery by the Company Stock Plans (excluding the Retek Inc. 1999 Employee Stock Purchase Plan (the “Company ESPP”))of this Agreement do not, and the consummation of the Offer, Transactions and compliance with the Merger terms hereof will not (either alone or in combination with any other Transaction will not event) (i) entitle any employeeParticipant to any additional compensation, officer severance or director of the Company or any Company Subsidiary to severance payother 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 of the Company Benefit Plans Plan or Company Benefit Agreements Agreement or (iii) result in any breach or violation of, or a default (with or without notice or lapse of time or both) under, any Company Benefit Plan or Company Benefit Agreement.
(g) Since January 1, 2001, 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 or Company Benefit Agreements.
(l) Other than payments that may be made to the persons listed in the Company Disclosure Schedule (the “Primary Company Executives”Plans), actions or proceedings against or involving or asserting any amount rights or economic benefit that would 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 defined in proposed Treasury Regulation Section 1.280G-1) claims to benefits under any Company Benefit Plan or Company Benefit Agreement or otherwise would not be characterized as an “excess parachute payment” (as defined ii) pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan or Company Benefit Agreement. All contributions, premiums and benefit payments under or in Section 280G(b)(1) of connection with the Code), and no disqualified individual is entitled Company Benefit Plans or Company Benefit Agreements that are required to receive any additional payment from 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 any material 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 other person in the event that the excise tax under Section 4999 Company Subsidiary and treating such persons as consultants or independent contractors and not as employees of the Code is imposed on such disqualified individual. Set forth in the Company Disclosure Schedule are (i) the estimated maximum amount that would be paid to each Primary or any Company Executive as 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 Executive calculated as of February 28, 2005Subsidiary.
Appears in 1 contract
Samples: Stockholders Agreement (Coast Hotels & Casinos Inc)
ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a)(i3.11(a) of the Company Disclosure Schedule sets forth Letter contains a complete and accurate 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 and Company Benefit Agreements (including in such description the number of participants in each such plan and the cost to the Company to maintain each such plan), each as of February 28, 2005 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 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 Plan Plans or Company Benefit Agreement a description Agreements, written descriptions thereof), (ii) the three two most recent annual reports on Form 5500 required to be filed, or such similar reports, statements, information returns or material correspondence filed with the Department of Labor or delivered to any Governmental Entity, with respect to each Company Benefit Plan (if any such report was requiredincluding reports filed on Form 5500 with accompanying schedules and attachments), as well as copies of all other filings made with the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation for each Company Benefit Plan’s most recent three plan years, (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 insurance, group annuity contract and any other material contract 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. All Participant data necessary to administer each Company Benefit Plan, other than any Company Benefit Plan that is a Company Multiemployer Pension Plan, and Company Benefit Agreement is in the possession of the Company and is in a form that is sufficient for the proper administration of the Company Benefit Plans and Company Benefit Agreements in accordance with their terms and all applicable Laws and such data is complete and correct in all material respects.
(b) All Company Pension Plans that are intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) have received favorable determination letters from the Internal Revenue Service with respect to TRA (as defined in Section I of Rev. Proc. 93-39), to the effect that such other than Company Multiemployer 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.
(c) With respect to all Company Benefit Plans, the reporting, disclosure and other requirements of ERISA and the Code, as applicable, have been fulfilled in all material respects.
(d) There are no pending or, to the knowledge of the Company, threatened claims, investigations, proceedings, suits, litigation or other actions by, on behalf of, against, or otherwise affecting, involving or in any way relating to any of the Company Benefit Plans or the Company Benefit Arrangements, and, to the knowledge of the Company, there are no facts or set of circumstances to the knowledge of the each Company that has resulted in or would result in any such claims, investigations, proceedings, suits, litigation or actions.
(e) No Company Pension Plan is subject to Title IV of ERISA or the minimum funding requirements of Section 302 of ERISA or Section 412 of the Code, and neither the Company nor any Company Subsidiary or any of their respective affiliates have any actual or contingent liability under any plan (whether or not currently sponsored, maintained or contributed to by any such entity) that is or was subject to such provisions of ERISA or the Code.
(f) None of the Company, any Company Subsidiary, any officer of the Company or any 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 defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that would 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(l) of ERISA.
(g) All contributions and premiums required to be made under the terms of any Company Benefit Plan as of February 28, 2005 have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed SEC Documents.
(h) No Company Pension Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”), and neither the Company nor any Company Subsidiary has any actual or contingent liability under any former Company Multiemployer Pension Plan.
(i) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is funded through a “welfare benefit fund” (as defined in 20 Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a “group health plan” (as 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 Subsidiaries on or at any time after the Effective Time.
(j) Neither the Company nor any Company Subsidiary have any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(k) Except with respect to accelerated vesting of Company Stock Options under the Company Stock Plans (excluding the Retek Inc. 1999 Employee Stock Purchase Plan (the “Company ESPP”)), the consummation of the Offer, the Merger or any other Transaction will not (i) entitle any employee, 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.
(l) Other than payments that may be made to the persons listed in the Company Disclosure Schedule (the “Primary Company Executives”), any amount or economic benefit that would 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 defined in proposed Treasury Regulation Section 1.280G-1) under any Company Benefit Plan or Company Benefit Agreement or otherwise 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 Company Subsidiary 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 the Company Disclosure Schedule are (i) the estimated maximum amount that would be paid to each Primary Company Executive as 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 Executive calculated as of February 28, 2005.Multiemployer
Appears in 1 contract
ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a)(i) of the Company Disclosure Schedule sets forth a complete and accurate 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 (including in such description the number of participants in each such plan and the cost to the Company to maintain each such plan), each as of February 28, 2005 the date hereof 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 or Company Benefit Agreement a description thereof), (ii) the three most recent annual reports on Form 5500 filed with the Department of Labor with respect to each Company Benefit Plan (if any such report was required), as well as copies of all other filings made with the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation for each Company Benefit Plan’s most recent three plan years, (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, group annuity and any other material contract relating to any Company Benefit Plan.
(b) All Company Pension Plans that are intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) have received favorable determination letters from the Internal Revenue Service with respect to TRA (as defined in Section I 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.
(c) With respect to all Company Benefit Plans, the reporting, disclosure and other requirements of ERISA and the Code, as applicable, have been fulfilled in all material respects.
(d) There are no pending or, to the knowledge of the Company, threatened claims, investigations, proceedings, suits, litigation or other actions by, on behalf of, against, or otherwise affecting, involving or in any way relating to any of the Company Benefit Plans or the Company Benefit Arrangements, and, to the knowledge of the Company, there are no facts or set of circumstances to the knowledge of the Company that has resulted in or would result in any such claims, investigations, proceedings, suits, litigation or actions.
(e) No Company Pension Plan is subject to Title IV of ERISA or the minimum funding requirements of Section 302 of ERISA or Section 412 of the Code, and neither the Company nor any Company Subsidiary or any of their respective affiliates have any actual or contingent liability under any plan (whether or not currently sponsored, maintained or contributed to by any such entity) that is or was subject to such provisions of ERISA or the Code.
(f) None of the Company, any Company Subsidiary, any officer of the Company or any 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 defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that would 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(l) of ERISA.
(g) All contributions and premiums required to be made under the terms of any Company Benefit Plan as of February 28, 2005 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 SEC Documents.
(h) No Company Pension Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”), and neither the Company nor any Company Subsidiary has any actual or contingent liability under any former Company Multiemployer Pension Plan.
(i) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is funded through a “welfare benefit fund” (as defined in 20 Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a “group health plan” (as 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 Subsidiaries on or at any time after the Effective Time.
(j) Neither the Company nor any Company Subsidiary have any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(k) Except with respect to accelerated vesting of Company Stock Options under the Company Stock Plans (excluding the Retek Inc. 1999 Employee Stock Purchase Plan (the “Company ESPP”)), the consummation of the Offer, the Merger or any other Transaction will not (i) entitle any employee, 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.
(l) Other than payments that may be made to the persons listed in the Company Disclosure Schedule (the “Primary Company Executives”), any amount or economic benefit that would 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 defined in proposed Treasury Regulation Section 1.280G-1) under any Company Benefit Plan or Company Benefit Agreement or otherwise 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 Company Subsidiary 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 the Company Disclosure Schedule are (i) the estimated maximum amount that would be paid to each Primary Company Executive as 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 Executive calculated as of February 28, 2005the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a)(i) of the Company Disclosure Schedule sets forth a complete and accurate 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 (including in such description the number of participants in each such plan and the cost to the Company to maintain each such plan), each as of February 28, 2005 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 or Company Benefit Agreement a description thereof), (ii) the three most recent annual reports on Form 5500 filed with the Department of Labor with respect to each Company Benefit Plan (if any such report was required), as well as copies of all other filings made with the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation for each Company Benefit Plan’s most recent three plan years, (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, group annuity and any other material contract relating to any Company Benefit Plan.
(b) All Company Pension Plans that are intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) have received favorable determination letters from the Internal Revenue Service with respect to TRA (as defined in Section I 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.
(c) With respect to all Company Benefit Plans, the reporting, disclosure and other requirements of ERISA and the Code, as applicable, have been fulfilled in all material respects.
(d) There are no pending or, to the knowledge of the Company, threatened claims, investigations, proceedings, suits, litigation or other actions by, on behalf of, against, or otherwise affecting, involving or in any way relating to any of the Company Benefit Plans or the Company Benefit Arrangements, and, to the knowledge of the Company, there are no facts or set of circumstances to the knowledge of the Company that has resulted in or would result in any such claims, investigations, proceedings, suits, litigation or actions.
(e) No Company Pension Plan is subject to Title IV of ERISA or the minimum funding requirements of Section 302 of ERISA or Section 412 of the Code, and neither the Company nor any Company Subsidiary or any of their respective affiliates have any actual or contingent liability under any plan (whether or not currently sponsored, maintained or contributed to by any such entity) that is or was subject to such provisions of ERISA or the Code.
(f) None of the Company, any Company Subsidiary, any officer of the Company or any 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 defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that would 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(l) of ERISA.
(g) All contributions and premiums required to be made under the terms of any Company Benefit Plan as of February 28, 2005 have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Filed SEC Documents.
(h) No Company Pension Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a “Company Multiemployer Pension Plan”), and neither the Company nor any Company Subsidiary has any actual or contingent liability under any former Company Multiemployer Pension Plan.
(i) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is funded through a “welfare benefit fund” (as defined in 20 Section 419(e) of the Code), (ii) each such Company Benefit Plan that is a “group health plan” (as 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 Subsidiaries on or at any time after the Effective Time.
(j) Neither the Company nor any Company Subsidiary have any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement.
(k) Except with respect to accelerated vesting of Company Stock Options under the Company Stock Plans (excluding the Retek Inc. 1999 Employee Stock Purchase Plan (the “Company ESPP”)), the consummation of the Offer, the Merger or any other Transaction will not (i) entitle any employee, 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.
(l) Other than payments that may be made to the persons listed in the Company Disclosure Schedule (the “Primary Company Executives”), any amount or economic benefit that would 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 defined in proposed Treasury Regulation Section 1.280G-11.280G -1) under any Company Benefit Plan or Company Benefit Agreement or otherwise 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 Company Subsidiary 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 the Company Disclosure Schedule are (i) the estimated maximum amount that would be paid to each Primary Company Executive as 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 Executive calculated as of February 28, 2005.
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
