Labor; ERISA. (a) Seller is not, and, as of the Closing Date will not be, a party to any employment, severance or consulting agreement or to any collective bargaining agreement, nor are its employees members of a collective bargaining unit or union, nor has there been any unionization activity. Seller has complied with all laws relating to the employment of labor, including provisions relating to wages, hours, collective bargaining, and the payment of unemployment, workers’ compensation, Social Security, payroll, withholding and similar Taxes, and is not liable for any arrears of wages, compensation fund contributions or any Taxes or penalties for failure to comply with such laws. Schedule 3.17 attached hereto contains a list of all persons employed by Seller at the Closing Date with their respective current salaries, any commission compensation received during the last twelve (12) months and a description of all benefits provided by Seller to its employees. No employee of Seller has given any notice or made any threat, or otherwise revealed an intent, to cancel or otherwise terminate his or her relationship with Seller or indicated an intention not to accept employment with Buyer, if employment is offered. At the Closing Date, all employees are terminable at will by Seller and will be free of all employment obligations to Seller and all non-competition and confidentiality covenants in favor of Seller and will be free to become employees of Buyer, if Buyer so desires. (b) Set forth in Schedule 3.17 is a list of (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and (ii) all profit sharing, stock bonus, pension, 401(k), ESOP, savings, medical, dental, disability, life or accident insurance, bonus, incentive, stock option, deferred compensation (as defined in Section 409A of the Code) and other similar compensation or employee benefit plans, funds, programs or arrangements, which are maintained for the benefit of, or relate to any or all employees of Seller (the plans referred to in clauses (i) and (ii) being collectively referred to as the “Plans”). None of the Plans constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A. Each of the Plans that does constitute such a nonqualified deferred compensation plan has been operated and maintained in accordance with applicable transition relief with respect to amounts deferred in taxable years beginning after December 31, 2004 and with respect to amounts deferred in taxable years beginning before January 1, 2005 if the plan under which the deferral is made is materially modified after October 3, 2004. (c) Seller has furnished to Buyer (i) a complete and correct copy, as of the date hereof, of each document constituting a part of each Plan, (ii) the three most recent annual reports (Form 5500 Series), if applicable, including all applicable schedules, if required, with respect to each Plan, (iii) the current summary plan description and any material modifications thereto, if required to be furnished under ERISA, or any written summary provided to participants with respect to any plan for which no summary plan description exists, and (iv) the most recent determination letter, if any, (or if applicable, advisory or opinion letter) from the IRS. (d) None of the Plans is a multiemployer plan within the meaning of Section 4001 of ERISA. (e) Each of the Plans is and has been operated and maintained in accordance with its terms and with the requirements of all applicable statutes, orders and governmental rules and regulations, including, but not limited to, the Code and ERISA. (f) There are no audits, inquiries, submissions, or proceedings pending or, to the Knowledge of the Seller Parties, threatened by the IRS, Department of Labor (the “DOL”) or other governmental agency with respect to any Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been timely made or accrued. (g) Each Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has received a favorable determination letter (or if applicable, advisory or opinion letter) from the IRS that has not been revoked, no event has occurred and no condition exists that could reasonably be expected to adversely affect the qualified status of any such Plan. Seller has no commitment to establish any new Plan or to modify any Plan (except to the extent required by law or to conform any such Plan to the requirements of any applicable law). Each Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms. (h) Seller has not at any time maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code and at no time has Seller contributed to or been requested to contribute to any “multiemployer plan,” as such term is defined in ERISA or to any plan described in Section 413(c) of the Code. (i) No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Plan. Neither Seller nor any officer or director of Seller is subject to any material liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA. (j) None of the Plans promises or provides medical or other welfare benefits to any former employee of Seller except as required by COBRA or other applicable law, and Seller has not represented, promised or contracted (whether in oral or written form) to provide welfare retiree benefits to any employee, former employee, director, consultant or other Person, except to the extent required by law. (k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any shareholder, director or employee of Seller under any Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Plan, or (iii) result in the acceleration of the time of payment or vesting of any such benefits.
Appears in 1 contract
Labor; ERISA. (a) Except as set forth on Schedule 3.17, neither Seller is notis, and, as of the Closing Date will not be, a party to any employment, severance or consulting agreement or to any collective bargaining agreement, nor are its employees members of a collective bargaining unit or union, nor has there been any unionization activity. Seller has Sellers have complied with all laws relating to the employment of labor, including provisions relating to wages, hours, collective bargaining, and the payment of unemployment, workers’ compensation, Social Security, payroll, withholding and similar Taxes, and is not liable for any arrears of wages, compensation fund contributions or any Taxes or penalties for failure to comply with such laws. Schedule 3.17 attached hereto contains a list of all persons employed by Seller at employee salaries and immediately prior to Closing Sellers will identify to Buyer the Closing Date with their respective current salaries, any commission compensation received during the last twelve (12) months name of each employee on such list. All such employees are employees of ISG and a description of all benefits provided by Seller to its BillingIT has no employees. No employee of any Seller has given any notice or made any threat, threat or otherwise revealed an intent, to cancel or otherwise terminate his or her relationship with such Seller or indicated an intention not to accept employment with Buyer, if employment is offered. At the Closing Date, all employees are terminable at will by each Seller and will be free of all employment obligations to such Seller and all non-competition and confidentiality covenants in favor of such Seller and will be free to become employees of Buyer, if Buyer so desires.
(b) Set forth in Schedule 3.17 is a list of (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and (ii) all profit sharing, stock bonus, pension, 401(k), ESOP, savings, medical, dental, disability, life or accident insurance, bonus, incentive, stock option, deferred compensation (as defined in Section 409A of the Code) and other similar compensation or employee benefit plans, funds, programs or arrangements, which are maintained for the benefit of, or relate to any or all employees of Seller Sellers (the plans referred to in clauses (i) and (ii) being collectively referred to as the “Plans”). None Except as set forth on Schedule 3.17, none of the Plans constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A. Each of the Plans that does constitute such a nonqualified deferred compensation plan has been operated and maintained in accordance with applicable transition relief with respect to amounts deferred in taxable years beginning after December 31, 2004 and with respect to amounts deferred in taxable years beginning before January 1, 2005 if the plan under which the deferral is made is materially modified after October 3, 2004.
(c) Each Seller has furnished to Buyer (i) a complete and correct copy, as of the date hereof, of each document constituting a part of each Plan, (ii) the three most recent annual reports report (Form 5500 Series), if applicable, including all applicable schedules, if required, with respect to each Plan, (iii) the current summary plan description and any material modifications thereto, if required to be furnished under ERISA, or any written summary provided to participants with respect to any plan for which no summary plan description exists, and (iv) the most recent determination letter, if any, letter (or if applicable, advisory or opinion letter) from the IRS.
(d) None of the Plans is a multiemployer plan within the meaning of Section 4001 of ERISA.
(e) Each of the Plans is and has been operated and maintained in accordance with its terms and with the requirements of all applicable statutes, orders and governmental rules and regulations, including, but not limited to, the Code and ERISA.
(f) There are no audits, inquiries, submissions, or proceedings pending or, to the Knowledge of the Seller Parties, threatened by the IRS, Department of Labor (the “DOL”) or other governmental agency with respect to any Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been timely made or accrued.
(g) Each Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has received a favorable determination letter (or if applicable, advisory or opinion letter) from the IRS that has not been revoked, no event has occurred and no condition exists that could reasonably be expected to adversely affect the qualified status of any such Plan. No Seller has no a commitment to establish any new Plan or to modify any Plan (except to the extent required by law or to conform any such Plan to the requirements of any applicable lawlaw or as set forth in Schedule 3.17). Each Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms.
(h) No Seller has not at any time maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code and at no time has any Seller contributed to or been requested to contribute to any “multiemployer plan,” as such term is defined in ERISA or to any plan described in Section 413(c) of the Code.
(i) No “prohibited transaction,” within the me meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Plan. Neither Seller nor any officer or director of any Seller is subject to any material liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA.
(j) None of the Plans promises or provides medical or other welfare benefits to any former employee of any Seller except as required by COBRA or other applicable law, and no Seller has not represented, promised or contracted (whether in oral or written form) to provide welfare retiree benefits to any employee, former employee, director, consultant or other Person, except to the extent required by law.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any shareholder, director or employee of any Seller under any Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Plan, or (iii) result in the acceleration of the time of payment or vesting of any such benefits.
Appears in 1 contract
Labor; ERISA. (a) Seller is not, and, Schedule 3.17(a) sets forth a list of each employee of the Business as of the Closing Date will not be(the “Business Employees”). Except as disclosed to Buyer in the Employee Letter (as defined below) or the disclosure schedule, neither Seller is a party to any employment, severance or consulting agreement or to any collective bargaining agreement, nor are its employees members of a collective bargaining unit or union, nor nor, to Sellers’ Knowledge, has there been any unionization activity, in each case related to the Business Employees. Seller has With respect to the Business Employees, Sellers have complied in all material respects with all laws relating to the employment of labor, including provisions relating to wages, hours, collective bargaining, and the payment of unemployment, employment insurance, workers’ compensation, Social Security, payroll, withholding and similar Taxes, and is not liable for any arrears of wages, compensation fund contributions or any Taxes or penalties for failure . Sellers have separately provided to comply with such laws. Schedule 3.17 attached hereto contains Buyer (to the extent permitted by applicable law) in a list of all persons employed by Seller at letter (the Closing Date with “Employee Letter”) their respective employers (i.e. the entity that is their current salariesemployer), the current salaries or hourly rates, any commission or bonus compensation owing or received during the last twelve (12) months months, any agreed severance entitlements, job title, length of employment or date of hire, dates and amounts of the most recent increases in salary, accrued vacation and all other amounts owing to all Business Employees, and a description of all benefits provided by Seller to its employeesBusiness Employees. No employee of Seller Business Employee has given any written notice or or, to Sellers’ Knowledge, made any threat, or otherwise revealed an intent, threat to (i) cancel or otherwise terminate his or her relationship with Seller the Business or indicated an intention (ii) not to accept employment with Buyer, if employment is offeredoffered with compensation and benefits (including with respect to severance) that are not less favorable in the aggregate than the compensation and benefits provided to such Business Employee immediately prior to Closing. At Except as disclosed to Buyer in the Closing DateEmployee Letter or the disclosure schedule and subject to applicable statutory rights, there exists no written contracts of employment with any of the Business Employees or any oral contracts of employment which are not terminable on the giving of reasonable notice and/or severance pay in accordance with applicable law and no inducements to accept employment with any party were offered to any Business Employees which have the effect of increasing the period of notice of termination to which any such employee is entitled. All Business Employees have been paid to the date of this Agreement all employees are terminable at will by Seller amounts payable on account of salary, bonus, payments and will be free of all employment obligations to Seller and all non-competition and confidentiality covenants in favor of Seller and will be free to become employees of Buyer, if Buyer so desirescommissions.
(b) Set forth in Schedule 3.17 is a list of (i3.17(b) all lists “employee benefit plans (plans” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA and any other plans in which Business Employees, as amended or any beneficiary thereof, is entitled to participate or to receive benefits (including without limitation, equity, deferred compensation, severance, retirement, and medical or life insurance) (“ERISASeller Plans”)). Sellers have furnished Buyer with a complete and accurate copy of each such plan. No such plan requires Buyer to assume any employment, and (ii) all profit sharingcompensation, stock bonusfringe benefit, pension, 401(k), ESOP, savings, medical, dental, disability, life profit sharing or accident insurance, bonus, incentive, stock option, deferred compensation agreement or plan in respect of any employee, and Sellers do not or have not contributed to or maintained a “multiemployer plan” (as defined in ERISA Section 409A of the Code3(37)) and other similar compensation or employee benefit plans, funds, programs or arrangements, which are maintained for the benefit of, or relate to any or all employees of Seller (the plans referred to in clauses (i) and (ii) being collectively referred to as the “Plans”). None of the Plans constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A. Each of the Plans that does constitute such a nonqualified deferred compensation plan has been operated and maintained in accordance with applicable transition relief with respect to amounts deferred in taxable years beginning after December 31, 2004 and with respect to amounts deferred in taxable years beginning before January 1, 2005 if the plan under which the deferral is made is materially modified after October 3, 2004Business Employees.
(c) Seller has furnished to Buyer (i) a complete and correct copy, as of the date hereof, of each document constituting a part of each Plan, (ii) the three most recent annual reports (Form 5500 Series), if applicable, including all applicable schedules, if required, with respect to each Plan, (iii) the current summary plan description and any material modifications thereto, if required to be furnished under ERISA, or any written summary provided to participants with respect to any plan for which no summary plan description exists, and (iv) the most recent determination letter, if any, (or if applicable, advisory or opinion letter) from the IRS.
(d) None of the Plans is a multiemployer plan within the meaning of Section 4001 of ERISA.
(e) Each of the Plans is and has been operated and maintained in accordance with its terms and with the requirements of all applicable statutes, orders and governmental rules and regulations, including, but not limited to, the Code and ERISA.
(f) There are no audits, inquiries, submissions, or proceedings pending or, to the Knowledge of the Seller Parties, threatened by the IRS, Department of Labor (the “DOL”) or other governmental agency with respect to any Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been timely made or accrued.
(g) Each Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has received a favorable determination letter (or if applicable, advisory or opinion letter) from the IRS that has not been revoked, no event has occurred and no condition exists that could reasonably be expected to adversely affect the qualified status of any such Plan. Seller has no commitment to establish any new Plan or to modify any Plan (except to the extent required by law or to conform any such Plan to the requirements of any applicable law). Each Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms.
(h) Seller has not at any time maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code and at no time has Seller contributed to or been requested to contribute to any “multiemployer plan,” as such term is defined in ERISA or to any plan described in Section 413(c) of the Code.
(i) No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Plan. Neither Seller nor any officer or director of Seller is subject to any material liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA.
(j) None of the Plans promises or provides medical or other welfare benefits to any former employee of Seller except as required by COBRA or other applicable law, and Seller has not represented, promised or contracted (whether in oral or written form) to provide welfare retiree benefits to any employee, former employee, director, consultant or other Person, except to the extent required by law.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any shareholder, director or employee of Seller under any Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Plan, or (iii) result in the acceleration of the time of payment or vesting of any such benefits.
Appears in 1 contract
Labor; ERISA. (a) Except as set forth on Schedule 3.17, Seller is not, and, as of the Closing Date will not be, a party to any employment, severance or consulting agreement or to any collective bargaining agreement, nor are its employees members of a collective bargaining unit or union, nor to Seller Parties' Knowledge, has there been any unionization activity. Seller has substantially complied with all laws relating to the employment of labor, including provisions relating to wages, hours, collective bargaining, and the payment of unemployment, workers’ ' compensation, Social Security, payroll, withholding and similar Taxes, and is not liable for any arrears of wages, compensation fund contributions or any Taxes or penalties for failure to comply with such laws. Schedule 3.17 attached hereto contains a list of all persons employed by Seller at the Closing Date with their respective current salaries, any commission compensation received during the last twelve (12) months and a description of all benefits provided by Seller to its employees. No employee of Seller has given to Seller any notice or to Seller's Knowledge, made any threat, or otherwise revealed to Seller an intent, to cancel or otherwise terminate his or her relationship with Seller or indicated to Seller an intention not to accept employment with Buyer, if employment is offered. At the Closing Date, all employees are terminable at will by Seller and will be free of all employment obligations to Seller and all non-competition and confidentiality covenants in favor of Seller and will be free to become employees of Buyer, if Buyer so desires.
(b) Set forth in Schedule 3.17 is a list of (i) lists all "employee benefit plans (plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”))") and any other plans pursuant to which Seller has any continuing obligation to provide benefits (including without limitation, equity, deferred compensation, severance, retirement, and (iimedical or life insurance) all profit sharingto any present or former employee, stock bonusor any beneficiary thereof. Seller has furnished Buyer with a complete and accurate copy of each such plan. No such plan requires Buyer to assume any employment, compensation, fringe benefit, pension, 401(k), ESOP, savings, medical, dental, disability, life profit sharing or accident insurance, bonus, incentive, stock option, deferred compensation agreement or plan in respect of any employee, and Seller does not and has not contributed to or maintained a "multiemployer plan" (as defined in ERISA Section 409A of the Code) and other similar compensation or employee benefit plans, funds, programs or arrangements, which are maintained for the benefit of, or relate to any or all employees of Seller (the plans referred to in clauses (i) and (ii) being collectively referred to as the “Plans”3(37). None of the Plans constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A. Each of the Plans that does constitute such a nonqualified deferred compensation plan has been operated and maintained in accordance with applicable transition relief with respect to amounts deferred in taxable years beginning after December 31, 2004 and with respect to amounts deferred in taxable years beginning before January 1, 2005 if the plan under which the deferral is made is materially modified after October 3, 2004).
(c) Seller has furnished to Buyer (i) a complete and correct copy, as of the date hereof, of each document constituting a part of each Plan, (ii) the three most recent annual reports (Form 5500 Series), if applicable, including all applicable schedules, if required, with respect to each Plan, (iii) the current summary plan description and any material modifications thereto, if required to be furnished under ERISA, or any written summary provided to participants with respect to any plan for which no summary plan description exists, and (iv) the most recent determination letter, if any, (or if applicable, advisory or opinion letter) from the IRS.
(d) None of the Plans is a multiemployer plan within the meaning of Section 4001 of ERISA.
(e) Each of the Plans is and has been operated and maintained in accordance with its terms and with the requirements of all applicable statutes, orders and governmental rules and regulations, including, but not limited to, the Code and ERISA.
(f) There are no audits, inquiries, submissions, or proceedings pending or, to the Knowledge of the Seller Parties, threatened by the IRS, Department of Labor (the “DOL”) or other governmental agency with respect to any Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been timely made or accrued.
(g) Each Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has received a favorable determination letter (or if applicable, advisory or opinion letter) from the IRS that has not been revoked, no event has occurred and no condition exists that could reasonably be expected to adversely affect the qualified status of any such Plan. Seller has no commitment to establish any new Plan or to modify any Plan (except to the extent required by law or to conform any such Plan to the requirements of any applicable law). Each Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms.
(h) Seller has not at any time maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code and at no time has Seller contributed to or been requested to contribute to any “multiemployer plan,” as such term is defined in ERISA or to any plan described in Section 413(c) of the Code.
(i) No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Plan. Neither Seller nor any officer or director of Seller is subject to any material liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA.
(j) None of the Plans promises or provides medical or other welfare benefits to any former employee of Seller except as required by COBRA or other applicable law, and Seller has not represented, promised or contracted (whether in oral or written form) to provide welfare retiree benefits to any employee, former employee, director, consultant or other Person, except to the extent required by law.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any shareholder, director or employee of Seller under any Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Plan, or (iii) result in the acceleration of the time of payment or vesting of any such benefits.
Appears in 1 contract
Labor; ERISA. (a) Except as set forth on Schedule 3.17, neither Seller is notis, and, as of the Closing Date will not be, a party to any employment, severance or consulting agreement or to any collective bargaining agreement, nor are its employees members of a collective bargaining unit or union, nor has there been any unionization activity. Seller has Sellers have complied with all laws relating to the employment of labor, including provisions relating to wages, hours, collective bargaining, and the payment of unemployment, workers’ compensation, Social Security, payroll, withholding and similar Taxes, and is are not liable for any arrears of wages, compensation fund contributions or any Taxes or penalties for failure to comply with such laws. Schedule 3.17 attached hereto contains a list of all persons employed by either Seller at the Closing Date with their respective current salaries, any commission compensation received during the last twelve (12) months and a description of all benefits provided by Seller Sellers to its their employees. No employee of either Seller has given any notice or made any threat, or otherwise revealed an intent, to cancel or otherwise terminate his or her relationship with such Seller or indicated an intention not to accept employment with Buyer, if employment is offered. At the Closing Date, all employees are terminable at will by Seller Sellers and will be free of all employment obligations to Seller Sellers and all non-competition and confidentiality covenants in favor of Seller Sellers and will be free to become employees of Buyer, if Buyer so desires.
(b) Set forth in Schedule 3.17 is a list lists of (i) all “employee benefit plans (plans” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”))) and any other plans pursuant to which either Seller has any continuing obligation to provide benefits (including without limitation, equity, deferred compensation, severance, retirement, and (ii) all profit sharing, stock bonus, pension, 401(k), ESOP, savings, medical, dental, disability, life or accident insurance, bonus, incentive, stock option, deferred compensation (as defined in Section 409A of the Code) and other similar compensation or employee benefit plans, funds, programs or arrangements, which are maintained for the benefit of, or relate to any or all employees of Seller (the plans referred to in clauses (i) and (ii) being collectively referred to as the “Plans”). None of the Plans constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A. Each of the Plans that does constitute such a nonqualified deferred compensation plan has been operated and maintained in accordance with applicable transition relief with respect to amounts deferred in taxable years beginning after December 31, 2004 and with respect to amounts deferred in taxable years beginning before January 1, 2005 if the plan under which the deferral is made is materially modified after October 3, 2004.
(c) Seller has furnished to Buyer (i) a complete and correct copy, as of the date hereof, of each document constituting a part of each Plan, (ii) the three most recent annual reports (Form 5500 Series), if applicable, including all applicable schedules, if required, with respect to each Plan, (iii) the current summary plan description and any material modifications thereto, if required to be furnished under ERISA, or any written summary provided to participants with respect to any plan for which no summary plan description exists, and (iv) the most recent determination letter, if any, (or if applicable, advisory or opinion letter) from the IRS.
(d) None of the Plans is a multiemployer plan within the meaning of Section 4001 of ERISA.
(e) Each of the Plans is and has been operated and maintained in accordance with its terms and with the requirements of all applicable statutes, orders and governmental rules and regulations, including, but not limited to, the Code and ERISA.
(f) There are no audits, inquiries, submissions, or proceedings pending or, to the Knowledge of the Seller Parties, threatened by the IRS, Department of Labor (the “DOL”) or other governmental agency with respect to any Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been timely made or accrued.
(g) Each Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has received a favorable determination letter (or if applicable, advisory or opinion letter) from the IRS that has not been revoked, no event has occurred and no condition exists that could reasonably be expected to adversely affect the qualified status of any such Plan. Seller has no commitment to establish any new Plan or to modify any Plan (except to the extent required by law or to conform any such Plan to the requirements of any applicable law). Each Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms.
(h) Seller has not at any time maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code and at no time has Seller contributed to or been requested to contribute to any “multiemployer plan,” as such term is defined in ERISA or to any plan described in Section 413(c) of the Code.
(i) No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Plan. Neither Seller nor any officer or director of Seller is subject to any material liability or penalty under Sections 4975 through 4980B of the Code or Title I of ERISA.
(j) None of the Plans promises or provides medical or other welfare benefits to any former employee of Seller except as required by COBRA or other applicable law, and Seller has not represented, promised or contracted (whether in oral or written form) to provide welfare retiree benefits to any employee, former employee, director, consultant or other Person, except to the extent required by law.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any shareholder, director or employee of Seller under any Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Plan, or (iii) result in the acceleration of the time of payment or vesting of any such benefits.life
Appears in 1 contract
