Pension and Benefit Plans; ERISA. (a) Section 3.12(a) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” and “employee pension benefit plan” (as those terms are re- spectively defined in Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “employee benefit plan” (as defined in Section 3(3) of ERISA), and each material employment, severance, termination, consultancy or other similar agreement, in each case that the Company or any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees or former employees of the Company and/or the Company Subsidiaries (each, a “Company Employee Benefit Plan”) . (b) A true and correct copy of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has been supplied or made available to Parent. (c) Except as would not, individually or in the aggregate, be material: (i) All Company Employee Benefit Plans comply and have been administered in compliance in all material respects with all applicable re- quirements of Law, and no event has occurred that would reasonably be expected to cause any such Company Employee Benefit Plan to fail to comply with such requirements and no notice has been issued by any Governmental Entity question- ing or challenging such compliance.
Appears in 1 contract
Samples: Merger Agreement (Mills Corp)
Pension and Benefit Plans; ERISA. (a) Section 3.12(aExcept as set forth on Schedule 3.1(l) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” and “Schedule or in the Company SEC Documents:
(i) All "employee pension benefit plan” (plans," as those terms are re- spectively defined in Sections 3(1) and Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)"ERISA"), other than maintained by the Company or any of its Subsidiaries or any trade or business (whether or not incorporated) which is under common control, or which is treated as a “multiemployer plan” single employer, with the Company under Section 414(b), (as defined in Section 3(37c), (m) or (o) of the Code ("Company ERISA Affiliate") or to which the Company or any of its Subsidiaries or any Company ERISA Affiliate contributed or is obligated to contribute thereunder within six years prior to the Effective Time (the "Company Pension Plans") intended to qualify under Section 401 of the Code so qualify and have been determined by the IRS to be qualified under Section 401 of the Code and, to the knowledge of the Company as of the Prior Execution Date, nothing has occurred with respect to the operation of the Company Pension Plans that could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA or the Code.
(ii) No Company Pension Plan is subject to Title IV of ERISA).
(iii) There is no material violation of ERISA with respect to (A) the filing of applicable reports, documents, and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “notices with the Secretary of Labor and the Secretary of the Treasury regarding all "employee benefit plan” (plans," as defined in Section 3(3) of ERISA, the Company Pension Plans and all other material employee compensation and benefit arrangements or payroll practices, including, without limitation, severance pay, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, retirement, deferred compensation, bonus (including, without limitation, any retention bonus plan), long-term incentive, stock option, stock purchase, hospitalization, medical insurance, life insurance and each material employment, severance, termination, consultancy or other similar agreement, in each case that scholarship programs maintained by the Company or any of its Subsidiaries or with respect to which the Company Subsidiary sponsorsor any of its Subsidiaries has any liability (all such plans, participates in other than the Company Pension Plans, being hereinafter referred to as the "Company Employee Benefit Plans") or contributes (B) the furnishing of such documents to for the benefit of employees participants or former employees beneficiaries of the Company and/or the Employee Benefit Plans or Company Subsidiaries Pension Plans.
(each, a “iv) Each Company Employee Benefit Plan and Company Pension Plan”, related trust (or other funding or financing arrangement) .
(b) A and all amendments thereto are listed on Schedule 3.1(l), true and correct copy complete copies of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has which have been made available to Parent. A true and correct copy of , as have the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, recent summary plan description and IRS determination letter descriptions, administrative service agreements, Form 5500s and, with respect to each any Company Employee Benefit PlanPension Plan intended to be qualified pursuant to Section 401 of the Code, in each case to the extent applicable, has been supplied or made available to Parenta current determination letter.
(cv) Except as would not, individually or in the aggregate, be material: (i) All The Company Employee Benefit Plans comply and Company Pension Plans have been administered in compliance maintained, in all material respects respects, in accordance with their terms and with all provisions of ERISA (including rules and regulations thereunder) and other applicable re- quirements Federal and state law, there is no material liability for breaches of Lawfiduciary duty in connection with the Company Employee Benefit Plans and Company Pension Plans, and neither the Company nor any of its Subsidiaries or any "party in interest" or "disqualified person" with respect to the Company Employee Benefit Plans and the Company Pension Plans has engaged in a material "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA.
(vi) As of the Prior Execution Date, there are no event has occurred that would reasonably be expected material actions, suits or claims pending (other than routine claims for benefits) or, to cause the knowledge of the Company, threatened against, or with respect to, the Company Employee Benefit Plans or the Company Pension Plans or their assets.
(vii) Except as described on Schedule 3.1(l) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any such payment (including any retention bonuses or noncompetition payments) becoming due to any employee or group of employees of the Company or any of its Subsidiaries; (B) increase any benefits otherwise payable under any Company Employee Benefit Plan or Company Pension Plan; or (C) result in the acceleration of the time of payment or vesting of any such benefits. Except as described on Schedule 3.1(l) of the Company Disclosure Schedule, there are no severance agreements, noncompetition agreements or employment agreements between the Company or any of its Subsidiaries and any employee of the Company or such Subsidiary. True and complete copies of all severance agreements and employment agreements described on Schedule 3.1(l) of the Company Disclosure Schedule have been provided to fail Parent and Newco.
(viii) Neither the Company nor any of its Subsidiaries has any consulting agreement or arrangement with any person involving compensation in excess of $100,000 except as are terminable upon one month's notice or less.
(ix) Neither the Company nor any of its Subsidiaries nor any Company ERISA Affiliate contributes to, or has an obligation to comply contribute to, and has not within six years prior to the Effective Time contributed to, or had an obligation to contribute to, a multiemployer plan within the meaning of Section 3(37) of ERISA.
(x) No stock or other security issued by the Company or any of its Subsidiaries forms or has formed a material part of the assets of any Company Employee Benefit Plan or Company Pension Plan.
(xi) The Company and its ERISA Affiliates have materially complied with such the requirements of Section 4980B of the Code and Parts 6 and 7 of Subtitle B of Title I of ERISA regarding health care coverage under the Company Employee Benefit Plans.
(xii) No amount has been paid by the Company or any of its ERISA Affiliates, and no notice amount is expected to be paid by the Company or any of its ERISA Affiliates, which would be subject to the provisions of 162(m) of the Code such that all or a part of such payments would not be deductible by the payor.
(xiii) As to any Company Pension Plan intended to be qualified pursuant to Section 401(a) of the Code there has been issued no termination or partial termination of the plan within the meaning of Section 411(d)(3) of the Code.
(xiv) No act, omission or transaction has occurred which would result in the imposition on the Company or any Subsidiary of the Company of breach of fiduciary duty liability damages pursuant to Section 409 of ERISA, a civil penalty pursuant to Section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code.
(xv) To the knowledge of the Company or any Subsidiary of the Company, there is no matter pending with respect to any Company Pension Plan or Company Employee Benefit Plan before the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation.
(xvi) Each Company Employee Benefit Plan may be unilaterally amended or terminated in its entirety by any Governmental Entity question- ing the Company without liability except as to benefits accrued thereunder prior to amendment or challenging such compliancetermination.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Walden Residential Properties Inc)
Pension and Benefit Plans; ERISA. (ai) Section 3.12(aSchedule 3.1(j)(i) of the Company Disclosure Letter lists each mate- rial “sets forth a complete and correct list of:
(A) all "employee welfare plan” and “employee pension benefit plan” (plans", as those terms are re- spectively defined in Sections 3(1) and 3(2Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)"ERISA"), maintained by the Company or any of its Subsidiaries to which Company or any of its Subsidiaries has any obligation or liability, contingent or otherwise; and
(B) all material employment or consulting agreements, and all material bonus or other incentive compensation, deferred compensation, salary continuation, disability, stock award, stock option, stock purchase or other material employee benefit policies or arrangements which the Company or any of its Subsidiaries maintains or to which the Company or any of its Subsidiaries has any obligation or liability (contingent or otherwise) (the documents referred to in clauses (A) and (B) being collectively referred to herein as the "Company Plans").
(ii) The Company and its Subsidiaries do not currently have any material obligation or Liability (contingent or otherwise) under Title IV of ERISA. No Company Plan is a "multiemployer plan" within the meaning of Section 3(37) of ERISA (a "Multiemployer Plan") or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "Multiple Employer Plan"), nor has the Company or any of its Subsidiaries at any time contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan.
(iii) None of the Company Plans is subject to Title IV of ERISA, and neither the Company nor any of its Subsidiaries has incurred any material outstanding Liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA.
(iv) The Company Plans intended to qualify under Section 401(a) and, if applicable, Section 401(k) of the Code, are qualified under such sections, and each trust maintained pursuant thereto has been determined to be exempt from federal income taxation under Section 501 of the Code by the IRS, and, to the Company's Knowledge, nothing has occurred with respect to the operation of any Company Plans that would cause the loss of such qualification or exemption or the imposition of any penalty, Liability or tax under ERISA or the Code.
(v) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Plans to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof in all material respects.
(vi) There has been no material violation of ERISA or the Code with respect to the filing of applicable reports, documents and notices regarding the Company Plans with the Secretary of Labor or the Secretary of the Treasury or the furnishing of required reports, documents or notices to the participants or beneficiaries of the Company Plans.
(vii) True, correct and complete copies of the following documents, with respect to each of the Company Plans, have been delivered to Parent by the Company, if applicable: (A) all plans and related trust documents, and amendments thereto, (B) the most recent Forms 5500, and (C) the most recent summary plan descriptions.
(viii) The Company Plans have been maintained and administered in all material respects in accordance with their terms and applicable laws, which include but are not limited to all applicable provisions of ERISA and the Code.
(ix) Except as disclosed in Schedule 3.1(j)(ix), there are no pending or, to the Knowledge of the Company, threatened material actions, claims or proceedings against or relating to any Company Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Company Plans with respect to the operation of such plans (other than routine benefit claims).
(x) Neither the Company, nor, to the Knowledge of the Company, any "party in interest" or "disqualified person" with respect to the Company Plans has engaged in a “multiemployer plan” (non-exempt "prohibited transaction," as defined in Section 3(37) 4975 of the Code or Section 406 of ERISA), and each . No fiduciary has any material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program liability for breach of fiduciary duty or any other fringe failure to act or other benefit comply in connection with the administration or compensation planinvestment of the assets of any of the Company Plans, program or arrangement and to the Knowledge of the Company, no event has occurred which could reasonably form the basis for any such material liability.
(xi) Except as otherwise provided in this Agreement and as disclosed in Schedule 3.1(j)(xi), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will: (a) result in any payment becoming due to any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, employee of the Company or any other “employee benefit Subsidiary, (b) increase any benefits otherwise payable under any of the Company Plans or (c) result in the acceleration of the time of payment or vesting of any benefits provided under any of the Company Plans.
(xii) Each "group health plan” (", as defined in Section 3(3) 4980B of the Code, maintained by the Company and its Subsidiaries has complied with the notice and coverage continuation requirements of Section 4980B of the Code and Section 601 of ERISA), and each material employment, severance, termination, consultancy or other similar agreement, in each case that the regulations thereunder ("COBRA"). None of the Company Plans provide retiree health or life insurance benefits except as may be required by COBRA or at the expense of the participant or the participant's beneficiary.
(xiii) There has been no mass layoff or plant closing as defined by the Worker Adjustment and Retraining Notification Act or any Company Subsidiary sponsors, participates in similar state or contributes local "plant closing" law with respect to for the benefit of employees or former employees of the Company and/or the Company Subsidiaries (each, a “Company Employee Benefit Plan”) and its Subsidiaries.
(b) A true and correct copy of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has been supplied or made available to Parent.
(c) Except as would not, individually or in the aggregate, be material: (i) All Company Employee Benefit Plans comply and have been administered in compliance in all material respects with all applicable re- quirements of Law, and no event has occurred that would reasonably be expected to cause any such Company Employee Benefit Plan to fail to comply with such requirements and no notice has been issued by any Governmental Entity question- ing or challenging such compliance.
Appears in 1 contract
Pension and Benefit Plans; ERISA. (a) Section 3.12(a) of the Company Disclosure Letter lists each mate- rial material “employee welfare plan” and “employee pension benefit plan” (as those terms are re- spectively respectively defined in Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ERISA”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment unemployment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding including any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- teetrustee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “employee benefit plan” (as defined in Section 3(3) of ERISA), and each material employment, severance, termination, consultancy or other similar agreement, in each case that the Company or any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees or former employees of the Company and/or the Company Subsidiaries (each, a “Company Employee Benefit Plan”) ).
(b) A true and correct copy of each written Company Employee Bene- fit Benefit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent recent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has been supplied or made available to Parent.
(c) Except as would not, individually or in the aggregate, be material: :
(i) All Company Employee Benefit Plans comply and have been administered in compliance in all material respects with all applicable re- quirements requirements of Law, and no event has occurred that would reasonably be expected to cause any such Company Employee Benefit Plan to fail to comply with such requirements and no notice has been issued by any Governmental Entity question- ing questioning or challenging such compliance.
(ii) (A) All Company Employee Benefit Plans which are employee pension benefit plans comply in all material respects with all applicable requirements of Sections 401(a) and 501(a) of the Code; (B) each Company Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending an application for such determination from the IRS with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and the Company is not aware of any reason why any such determination letter should be revoked; (C) there have been no amendments to such plans that are not the subject of a favorable determination letter issued with respect thereto by the IRS (other than an amendment for which the remedial amendment period under Section 401(b) of the Code has not expired); and (D) no event has occurred that would reasonably be expected to give rise to disqualification of any such plan under such sections.
(iii) There are no actions, suits, claims, audits or investigations (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened involving any Company Employee Benefit Plan or the assets thereof and, to the Knowledge of the Company, no facts exist that would reasonably be expected to give rise to any such actions, suits, claims, audits or investigations (other than routine claims for benefits).
(iv) Neither the Company, any Company Subsidiary nor any of their respective ERISA Affiliates sponsors, maintains, contributes to or is required to contribute to, or has in the past six years sponsored, maintained, contributed to or was required to contribute to, any employee benefit plan subject to Section 412 of the Code or Title IV of ERISA.
(v) Neither the Company nor any Company Subsidiary has any liability or contingent liability for providing, under any Company Employee Benefit Plan or otherwise, any 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 and Section 4980B of the Code.
(vi) The consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) entitle any current or former employee or director of the Company or the Company Subsidiaries to any payment, bonus, retirement, severance, job security or similar benefit or enhance any such benefit, or accelerate the time of payment, vesting or exercisability or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other obligation pursuant to, any Company Employee Benefit Plan, and no amount or benefit to be paid or provided in connection with the consummation of such transactions will constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(d) Neither the Company, any Company Subsidiary nor any of their respective ERISA Affiliates, contributes to, has contributed to, or has any liability or contingent liability with respect to a “multiemployer plan” (as defined in Section 3(37) of ERISA), any “welfare benefit fund” (within the meaning of Section 419(e) of the Code) or any “multiple employer plan” (within the meaning of Section 413(c) of the Code).
(e) The exercise price of any stock option or stock appreciation right issued under any Company Employee Benefit Plan was not less than the fair market value of the stock underlying such stock option or stock appreciation right on the date of its grant.
(f) The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other Company Employee Benefit Plans (collectively, the “Arrangements”) to certain holders of Company Common Shares and other securities of Company (the “Covered Securityholders”). The Company represents and warrants that all such amounts payable under the Arrangements (i) are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) are not calculated based on the number of shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The Company also represents and warrants that (i) the adoption, approval, amendment or modification of each Arrangement since the discussions relating to the transactions contemplated hereby between the Company and Parent began has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto and (ii) the “safe harbor” provided pursuant to Rule 14d-10(d)(2) is otherwise applicable thereto as a result of the taking prior to the execution of this Agreement of all necessary actions by the Company Board of Directors, the Executive Compensation Committee thereof or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board of Directors reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date hereof has been provided to Parent prior to the execution of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Mills Corp)
Pension and Benefit Plans; ERISA. (a) Section 3.12(a3.15(a) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” and “employee pension benefit plan” sets forth (as those terms are re- spectively defined in Sections 3(1i) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “all "employee benefit plan” (plans," as defined in Section 3(3) of ERISA, and all other employee compensation and benefit policies, arrangements or payroll practices, including, without limitation, severance pay, severance agreements, employment agreements, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, retirement, deferred compensation, bonus (including, without limitation, any retention bonus plan), long-term incentive, stock option, stock purchase, hospitalization, medical insurance, life insurance and each material employment, severance, termination, consultancy or other similar agreement, in each case that scholarship programs maintained by the Company or any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees or former employees of the Company and/or Subsidiaries or with respect to which the Company or any of the Company Subsidiaries has any liability; and (eachii) all "employee pension benefit plans," as defined in Section 3(2) of ERISA, maintained or contributed to by the Company or any trade or business (whether or not incorporated) which is under common control, or which is treated as a “single employer, with the Company under Section 414(b), (c), (m) or (o) of the Code (a "Company ERISA Affiliate") or to which the Company or any of the Company Subsidiaries or any Company ERISA Affiliate contributed or is obligated to contribute thereunder within six years prior to the Closing (the "Company Pension Plans") (all such plans listed in clauses (i) and (ii) being hereinafter referred to as the "Company Employee Benefit Plan”) Plans").
(b) A true True and correct copy complete copies of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has related trust (or other funding or financing arrangement) and all amendments thereto have been supplied or made available to Parent, as have the most recent summary plan descriptions, administrative service agreements, Form 5500s and, with respect to any Company Employee Benefit Plan intended to be qualified pursuant to Section 401(a) of the Code, a current IRS determination letter.
(c) All individual employment, consulting, termination, severance, change in control, retention, bonus, post-employment and other compensation agreements, arrangements and plans existing prior to the execution of this Agreement or which will exist prior to the Closing, which are between the Company or a Company Subsidiary and any current or former director, officer or employee thereof, including the name of such current or former director, officer or employee, the type of agreement and the amount of any estimated severance payment (including estimated gross-up, if applicable) owed thereunder due to the transactions contemplated by this Agreement and any subsequent termination of employment, are listed in Section 3.15(c) the Company Disclosure Letter (collectively, the "Company Employment Agreements").
(d) The Company Pension Plans intended to qualify under Section 401 of the Code have received a favorable determination letter from the IRS and such determination has not been modified, revoked or limited, and, to the Knowledge of the Company as of the Closing Date, nothing has occurred with respect to the operation of the Company Pension Plans that could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or Tax under ERISA or the Code.
(e) Except as would not, individually or in the aggregate, reasonably be material: expected to have a Company Material Adverse Effect or except as disclosed in Section 3.15(e) of the Company Disclosure Letter:
(i) All Company Employee Benefit Plans comply and have been administered maintained in compliance in all material respects accordance with their express terms and with all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable re- quirements Law.
(ii) None of Lawthe Company Pension Plans is a "multiemployer plan", as defined in Section 3(37) of ERISA ("Company Multiemployer Plan"), and neither the Company nor any Company ERISA Affiliate has withdrawn in a complete or partial withdrawal from any Multiemployer Plan, nor has any of them incurred any present or contingent liability due to the termination or reorganization of a Multiemployer Plan.
(iii) Neither the Company nor any Company ERISA Affiliate has ever maintained, sponsored, contributed to or otherwise incurred any present or contingent liability with respect to any "single-employer plan", as defined in Section 4001(a)(15) of ERISA, and neither the Company nor any Company ERISA Affiliate has any present or contingent liability under Title IV of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA, and no event has events have occurred and no circumstances exist that would could reasonably be expected to cause result in any such liability to the Company or any Company ERISA Affiliate.
(iv) There is no liability for breaches of fiduciary duty in connection with Company Employee Benefit Plans, and neither the Company nor any of the Company Subsidiaries or any "party in interest" or "disqualified person" with respect to Company Employee Benefit Plans has engaged in a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA.
(v) There are no actions, disputes, suits, claims, arbitration or legal, administrative or other proceeding or governmental investigation pending (other than routine claims for benefits) or, to the Knowledge of the Company, threatened, alleging any breach of the terms of any Company Employee Benefit Plan or of any fiduciary duties thereunder or violation of any applicable Law with respect to any such Company Employee Benefit Plan.
(vi) All contributions, premiums and other payments required by Law or any Company Employee Benefit Plan or applicable collective bargaining agreement have been made under any such plan to fail any fund, trust or account established thereunder or in connection therewith by the due date thereof, and no amounts are or will be due to comply the Pension Benefit Guaranty Corporation as of the Closing Date (except for premiums in the ordinary course of business, which will be payable by the Company); and any and all contributions, premiums and other payments with respect to compensation or service before and through the Closing Date, or otherwise with respect to periods before and through the Closing Date, due from any of the Company or its ERISA Affiliates to, under or on account of each Company Employee Benefit Plan shall have been paid prior to the Closing Date or shall have been fully reserved and provided for or accrued on the Company financial statements.
(vii) The Company and Company ERISA Affiliates have complied with the requirements of Section 4980B of the Code and Parts 6 and 7 of Subtitle B of Title I of ERISA regarding health care coverage under Company Employee Benefit Plans.
(viii) No amount has been paid by the Company or any Company Subsidiaries, and no amount is expected to be paid by the Company or any Company Subsidiaries, which would be subject to the provisions of Section 162(m) of the Code such that all or a part of such payments would not be deductible by the payor.
(ix) Each Company Employee Benefit Plan may be unilaterally amended or terminated in its entirety by the Company without liability except as to benefits accrued thereunder prior to amendment or termination and except for the rights of third-party administrators under the Company's Contracts with such requirements administrators, which Contracts have been previously provided to Parent.
(f) Except as set forth in Section 3.15(f) of the Company Disclosure Letter, neither the execution and no notice has been issued by delivery of this Agreement nor the consummation of the transactions contemplated hereby, whether alone, or in connection with any Governmental Entity question- ing other event, will (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or challenging such compliancenoncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any of the Company Subsidiaries; (ii) increase any benefits otherwise payable under any Company Employee Benefit Plan or any Company Employment Agreement; (iii) result in the acceleration of the time of payment or vesting of any Company Options or any other rights or benefits; or (iv) result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any of the Company Subsidiaries.
Appears in 1 contract
Pension and Benefit Plans; ERISA. (a) Section 3.12(a4.15(a) of the Company Parent Disclosure Letter lists each mate- rial “employee welfare plan” and “employee pension benefit plan” sets forth (as those terms are re- spectively defined in Sections 3(1i) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other all “employee benefit planplans,” (as defined in Section 3(3) of ERISA, and all material employee compensation and benefit plans, policies, arrangements or payroll practices, including, without limitation, severance pay, severance agreements, employment agreements, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, retirement, deferred compensation, bonus (including, without limitation, any retention bonus plan), long-term incentive, stock option, stock purchase, hospitalization, medical insurance, life insurance and each material employment, severance, termination, consultancy or other similar agreement, in each case that the Company scholarship programs maintained by Parent or any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees or former employees of the Company and/or Parent Subsidiaries or with respect to which Parent or any of the Company Parent Subsidiaries has any liability; and (eachii) all “employee pension benefit plans,” as defined in Section 3(2) of ERISA, maintained or contributed to by Parent or any trade or business (whether or not incorporated) which is under common control, or which is treated as a single employer, with Parent under Section 4.14(b), (c), (m) or (o) of the Code (a “Company Parent ERISA Affiliate”) or to which Parent or any of the Parent Subsidiaries or any Parent ERISA Affiliate contributed or is obligated to contribute thereunder within six years prior to the Closing (the “Parent Pension Plans”) (all such plans listed in clauses (i) and (ii) being hereinafter referred to as the “Parent Employee Benefit PlanPlans”) ).
(b) A true True and correct copy complete copies of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Parent Employee Benefit Plan, has related trust (or other funding or financing arrangement) and all amendments thereto have been made available to Parent. A true , as have the most recent summary plan descriptions, administrative service agreements, investment management or advisory agreements, audit reports, fidelity bonds, and correct copy fiduciary liability policies for such Parent Employee Benefit Plans, as well as (i) Form 5500s for each Parent Employee Benefit Plan for each of the most re- cent annual report past three (Form 5500 Series)3) years, actuarial report, annual financial report, summary plan description and IRS determination letter (ii) all material correspondence with respect any Governmental Entity relating to each Company any Parent Employee Benefit Plan, and (iii) with respect to any Parent Employee Benefit Plan intended to be qualified pursuant to Section 401(a) of the Code, a current IRS determination letter. Back to Contents
(c) All individual employment, consulting, termination, severance, change in each case control, retention, bonus, post employment and other compensation agreements, arrangements and plans existing prior to the extent execution of this Agreement or which will exist prior to the Closing, which are between Parent or a Parent Subsidiary and any current or former trustee, director, officer or employee thereof, including the name of such current or former trustee, director, officer or employee, the type of agreement and the amount of any estimated severance payment (including estimated gross-up, if applicable) owed thereunder due to the transactions contemplated by this Agreement and any subsequent termination of employment, has been supplied or made available to Parentare listed in Section 4.15(c) of the Parent Disclosure Letter (collectively, the “Parent Employment Agreements”).
(cd) Parent Pension Plans intended to qualify under Section 401 of the Code have received a favorable determination letter from the IRS and such determination has not been modified, revoked or limited, and, to the Knowledge of Parent as of the Closing Date, nothing has occurred with respect to the operation of the Parent Pension Plans that could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or Tax under ERISA or the Code.
(e) Except as would not, individually or in the aggregate, be material: have a Parent Material Adverse Effect or except as disclosed in Section 4.15(e) of the Parent Disclosure Letter:
(i) All Company Parent Employee Benefit Plans comply and have been administered maintained in compliance in all material respects accordance with their express terms and with all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable re- quirements Law.
(ii) None of Lawthe Parent Pension Plans is a “multiemployer plan”, as defined in Section 3(37) of ERISA (“Parent Multiemployer Plan”), and neither Parent nor any Parent ERISA Affiliate has at any time in the past sponsored, contributed to any such Parent Multiemployer Plan, or has any liabilities with respect to any such Parent Multiemployer Plan.
(iii) Neither Parent nor any Parent ERISA Affiliate has ever maintained, sponsored, contributed to or otherwise incurred any present or contingent liability with respect to any “single-employer plan”, as defined in Section 4001(a)(15) of ERISA, and neither Parent nor any Parent ERISA Affiliate has any present or contingent liability under Title IV of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA, and no event has events have occurred and no circumstances exist that would could reasonably be expected to cause result in any such Company liability to Parent or any Parent ERISA Affiliate.
(iv) There is no liability for breaches of fiduciary duty in connection with Parent Employee Benefit Plans, and neither Parent nor any of the Parent Subsidiaries or any “party in interest” or “disqualified person” with respect to Parent Employee Benefit Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA. Back to Contents
(v) There are no actions, disputes, suits, claims, arbitration or legal, administrative or other proceeding or governmental investigation pending (other than routine claims for benefits) or, to the Knowledge of Parent, threatened, alleging any breach of the terms of any Parent Employee Benefit Plan or of any fiduciary duties thereunder or violation of any applicable Law with respect to fail any such Parent Employee Benefit Plan.
(vi) All contributions, premiums and other payments required by Law or any Parent Employee Benefit Plan or applicable collective bargaining agreement have been made under any such plan to comply any fund, trust or account established thereunder or in connection therewith by the due date thereof, and no amounts are or will be due to the Pension Benefit Guaranty Corporation as of the Closing Date (except for premiums in the ordinary course of business, which will be payable by Parent); and any and all contributions, premiums and other payments with respect to compensation or service before and through the Closing Date, or otherwise with respect to periods before and through the Closing Date, due from any of Parent or its Parent ERISA Affiliates to, under or on account of each Parent Employee Benefit Plan shall have been paid prior to the Closing Date or shall have been fully reserved and provided for or accrued on Parent financial statements.
(vii) Parent and Parent ERISA Affiliates have complied with the requirements of Section 4980B of the Code and Parts 6 and 7 of Subtitle B of Title I of ERISA regarding health care coverage under Parent Employee Benefit Plans.
(viii) No amount has been paid by Parent or any Parent Subsidiaries, and no amount is expected to be paid by Parent or any Parent Subsidiaries, which would be subject to the provisions of Section 162(m) of the Code such that all or a part of such payments would not be deductible by the payor.
(ix) Each Parent Employee Benefit Plan may be unilaterally amended or terminated in its entirety by Parent except as to benefits accrued thereunder prior to amendment or termination and except for the rights of third-party administrators under Parent’s Contracts with such requirements administrators, which Contracts have been previously provided to the Company.
(f) Except as set forth in Section 4.15(f) of the Parent Disclosure Letter, neither the execution and no notice has been issued by delivery of this Agreement nor the consummation of the transactions contemplated hereby, whether alone, or in connection with any Governmental Entity question- ing other event, will (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or challenging such compliance.noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of Parent or any of the Parent Subsidiaries; (ii) increase any benefits otherwise payable under any Parent Employee Benefit Plan or any Parent Employment Agreement; (iii) result in the acceleration of the time of payment or vesting of any Parent Options or any other rights or benefits; or (iv) result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code with respect to a current or former employee of Parent or any of the Parent Subsidiaries. Back to Contents
Appears in 1 contract
Samples: Merger Agreement (Brandywine Operating Partnership Lp /Pa)
Pension and Benefit Plans; ERISA. (a) Section 3.12(aSchedule 2.14(a) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” contains a true and “employee pension benefit plan” complete list of: (as those terms are re- spectively defined in Sections 3(1i) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “all "employee benefit plan” (plans," as defined in Section 3(3) of ERISA); (ii) all bonus or other incentive compensation, and each material employmentdeferred compensation, employee loan, salary continuation, severance, retention, change in control, vacation, sick leave, stock award, stock option, stock purchase, phantom stock, retirement, disability, death benefit, hospitalization, medical employee loan, educational assistance or leave of absence agreements, arrangements, policies or plans; and (iii) all employment, consulting, termination, consultancy or other similar agreement, individual compensation agreements or arrangements; in each case that case, which the Company has any obligation or liability (contingent or otherwise) relating to any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees current or former employees employee officer or director ("Employee Benefit Plans"). None of the Company and/or Employee Benefits Plans is subject to Title IV of ERISA, and the Company Subsidiaries has no Liability pursuant to Title IV of ERISA. Except as disclosed in Schedule 2.14(a), neither the Company nor any ERISA Affiliate maintains or sponsors an "employee benefit plan" as defined in Section 3(3) of ERISA which covers or provides benefits to the employees (each, a “Company Employee Benefit Plan”current or former) of the Company.
(b) A true Each Employee Benefit Plan and correct copy its related trust that are intended to qualify under Sections 401 and 501(a) of each written Company Employee Bene- fit Planthe Code, respectively, so qualify, and have received a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS favorable determination letter from the IRS to such effect, and nothing has occurred with respect to each Company the operation or administration of any such Employee Benefit PlanPlan which could adversely affect such favorable determination or could cause the loss of such qualification or exemption or the imposition of any Liability, penalty, or Tax under ERISA or the Code, in each case to the extent applicable, has been supplied or made available to Parent.
(c) Except as would notwhich, individually or in the aggregate, be material: (i) All Company Employee Benefit Plans comply and have been administered in compliance in all material respects with all applicable re- quirements of Law, and no event has occurred that would reasonably be expected to cause have a Material Adverse Effect. There are no audits or proceedings initiated or pursuant to the Employee Plans Compliance Resolution System or similar proceedings pending with the IRS or Department of Labor with respect to any such Company Employee Benefit Plan which, individually or in the aggregate, would reasonably be expected to fail have a Material Adverse Effect.
(c) True and complete copies of the following documents (if applicable) with respect to comply each of the Employee Benefit Plans have been furnished to Purchaser: (i) the most recent document constituting the Employee Benefit Plan and all amendments thereto, and any related trust documents; (ii) the most recent summary plan description, and all related summaries of material modifications; (iii) the most recent IRS determination letter; (iv) the most recent Form 5500 (including schedules and attachments); (v) the most recent financial statements and actuarial reports (including for purposes of Financial Accounting Standards Board report nos. 87, 106 and 112); and (vi) a description of any nonwritten Employee Benefit Plan.
(d) There are no actions, claims, suits, investigations, arbitrations, or similar proceedings pending or, to the knowledge of Seller or the Company, threatened in respect of or relating to any Employee Benefit Plan (other than routine claims for benefits in the ordinary course) or, to the knowledge of Seller and the Company, no facts exist that could form the basis for any such action, claim, suit, investigation, arbitration, or proceeding. The Company is not subject to any outstanding claims for severance payments that have not been paid or will not have been paid at Closing.
(e) All amendments and actions required to bring the Employee Benefit Plans that are intended to qualify under Section 401 of the Code into conformity with all of the applicable provisions of ERISA, the Code and other applicable laws have been made or taken except to the extent that such requirements and no notice amendments or actions are not required by law to be made or taken until a date after the Closing Date.
(f) Each Employee Benefit Plan has been issued by maintained, operated and administered in all material respects, in accordance with its terms and with all applicable provisions of ERISA, the Code and other applicable law, and neither Seller, the Company nor any Governmental Entity question- ing "party in interest" or challenging such compliance.any "disqualified person" with respect to the Employee Benefit Plans has engaged in a "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. In particular, no individual who has performed services for the Company has been improperly excluded from
Appears in 1 contract
Pension and Benefit Plans; ERISA. (a) Section 3.12(a3.15(a) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” and “employee pension benefit plan” sets forth (as those terms are re- spectively defined in Sections 3(1i) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “all "employee benefit plan” (plans," as defined in Section 3(3) of ERISA, and all other employee compensation and benefit policies, arrangements or payroll practices, including, without limitation, severance pay, severance agreements, employment agreements, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, retirement, deferred compensation, bonus (including, without limitation, any retention bonus plan), long-term incentive, stock option, stock purchase, hospitalization, medical insurance, life insurance and each material employment, severance, termination, consultancy or other similar agreement, in each case that scholarship programs maintained by the Company or any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees or former employees of the Company and/or Subsidiaries or with respect to which the Company or any of the Company Subsidiaries has any liability; and (eachii) all "employee pension benefit plans," as defined in Section 3(2) of ERISA, maintained or contributed to by the Company or any trade or business (whether or not incorporated) which is under common control, or which is treated as a “single employer, with the Company Employee Benefit Plan”under Section 414(b), (c), (m) or (o) of the Code (a "COMPANY ERISA AFFILIATE") or to which the Company or any of the Company Subsidiaries or any Company ERISA Affiliate contributed or is obligated to contribute thereunder within six years prior to the Closing (the "COMPANY PENSION PLANS") (all such plans listed in clauses (i) and (ii) being hereinafter referred to as the "COMPANY EMPLOYEE BENEFIT PLANS").
(b) A true True and correct copy complete copies of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has related trust (or other funding or financing arrangement) and all amendments thereto have been supplied or made available to Parent, as have the most recent summary plan descriptions, administrative service agreements, Form 5500s and, with respect to any Company Employee Benefit Plan intended to be qualified pursuant to Section 401(a) of the Code, a current IRS determination letter.
(c) All individual employment, consulting, termination, severance, change in control, retention, bonus, post-employment and other compensation agreements, arrangements and plans existing prior to the execution of this Agreement or which will exist prior to the Closing, which are between the Company or a Company Subsidiary and any current or former director, officer or employee thereof, including the name of such current or former director, officer or employee, the type of agreement and the amount of any estimated severance payment (including estimated gross-up, if applicable) owed thereunder due to the transactions contemplated by this Agreement and any subsequent termination of employment, are listed in Section 3.15(c) the Company Disclosure Letter (collectively, the "COMPANY EMPLOYMENT Agreements").
(d) The Company Pension Plans intended to qualify under Section 401 of the Code have received a favorable determination letter from the IRS and such determination has not been modified, revoked or limited, and, to the Knowledge of the Company as of the Closing Date, nothing has occurred with respect to the operation of the Company Pension Plans that could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or Tax under ERISA or the Code.
(e) Except as would not, individually or in the aggregate, reasonably be material: expected to have a Company Material Adverse Effect or except as disclosed in Section 3.15(e) of the Company Disclosure Letter:
(i) All Company Employee Benefit Plans comply and have been administered maintained in compliance in all material respects accordance with their express terms and with all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable re- quirements Law.
(ii) None of Lawthe Company Pension Plans is a "multiemployer plan", as defined in Section 3(37) of ERISA ("COMPANY MULTIEMPLOYER PLAN"), and neither the Company nor any Company ERISA Affiliate has withdrawn in a complete or partial withdrawal from any Multiemployer Plan, nor has any of them incurred any present or contingent liability due to the termination or reorganization of a Multiemployer Plan.
(iii) Neither the Company nor any Company ERISA Affiliate has ever maintained, sponsored, contributed to or otherwise incurred any present or contingent liability with respect to any "single-employer plan", as defined in Section 4001(a)(15) of ERISA, and neither the Company nor any Company ERISA Affiliate has any present or contingent liability under Title IV of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA, and no event has events have occurred and no circumstances exist that would could reasonably be expected to cause result in any such liability to the Company or any Company ERISA Affiliate.
(iv) There is no liability for breaches of fiduciary duty in connection with Company Employee Benefit Plans, and neither the Company nor any of the Company Subsidiaries or any "party in interest" or "disqualified person" with respect to Company Employee Benefit Plans has engaged in a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA.
(v) There are no actions, disputes, suits, claims, arbitration or legal, administrative or other proceeding or governmental investigation pending (other than routine claims for benefits) or, to the Knowledge of the Company, threatened, alleging any breach of the terms of any Company Employee Benefit Plan or of any fiduciary duties thereunder or violation of any applicable Law with respect to any such Company Employee Benefit Plan.
(vi) All contributions, premiums and other payments required by Law or any Company Employee Benefit Plan or applicable collective bargaining agreement have been made under any such plan to fail any fund, trust or account established thereunder or in connection therewith by the due date thereof, and no amounts are or will be due to comply the Pension Benefit Guaranty Corporation as of the Closing Date (except for premiums in the ordinary course of business, which will be payable by the Company); and any and all contributions, premiums and other payments with respect to compensation or service before and through the Closing Date, or otherwise with respect to periods before and through the Closing Date, due from any of the Company or its ERISA Affiliates to, under or on account of each Company Employee Benefit Plan shall have been paid prior to the Closing Date or shall have been fully reserved and provided for or accrued on the Company financial statements.
(vii) The Company and Company ERISA Affiliates have complied with the requirements of Section 4980B of the Code and Parts 6 and 7 of Subtitle B of Title I of ERISA regarding health care coverage under Company Employee Benefit Plans.
(viii) No amount has been paid by the Company or any Company Subsidiaries, and no amount is expected to be paid by the Company or any Company Subsidiaries, which would be subject to the provisions of Section 162(m) of the Code such that all or a part of such payments would not be deductible by the payor.
(ix) Each Company Employee Benefit Plan may be unilaterally amended or terminated in its entirety by the Company without liability except as to benefits accrued thereunder prior to amendment or termination and except for the rights of third-party administrators under the Company's Contracts with such requirements administrators, which Contracts have been previously provided to Parent.
(f) Except as set forth in Section 3.15(f) of the Company Disclosure Letter, neither the execution and no notice has been issued by delivery of this Agreement nor the consummation of the transactions contemplated hereby, whether alone, or in connection with any Governmental Entity question- ing other event, will (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or challenging such compliancenoncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any of the Company Subsidiaries; (ii) increase any benefits otherwise payable under any Company Employee Benefit Plan or any Company Employment Agreement; (iii) result in the acceleration of the time of payment or vesting of any Company Options or any other rights or benefits; or (iv) result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any of the Company Subsidiaries.
Appears in 1 contract
Pension and Benefit Plans; ERISA. (ai) The Company has made available to Parent true, correct, and complete copies of each of the following which is sponsored, maintained or contributed to by the Company or any of its Subsidiaries for the benefit of the employees of the Company or such Subsidiary:
(1) each "employee benefit plan," as such term is defined in Section 3.12(a3(3) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” and “employee pension benefit plan” (as those terms are re- spectively defined in Sections 3(1) and 3(2) of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA ”"ERISA") (including, but not limited to, employee benefit plans, such as foreign plans, which are not subject to the provisions of ERISA) ("Company Plans"); and
(2) each personnel policy, stock option plan, collective bargaining agreement, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, severance pay plan, policy or agreement, deferred compensation agreement or arrangement, executive compensation or supplemental income arrangement, consulting agreement, employment agreement and each other employee benefit plan, agreement, arrangement, program, practice or understanding which is not described in Section 3.1(n)(i)(1) ("Company Benefit Programs").
(ii) Except as disclosed in Schedule 3.1(n)(ii) of the Company Letter:
(1) The Company and its Subsidiaries do not contribute to or have an obligation to contribute to, other than and have not at any time within six years prior to the Effective Time contributed to or had an obligation to contribute to, a “multiemployer plan” (as defined in plan within the meaning of Section 3(37) of ERISA;
(2) The Company and its Subsidiaries have substantially performed all material obligations, whether arising by operation of law or by contract, required to be performed by them in connection with the Company Plans and the Company Benefit Programs, and to the knowledge of the Company there have been no material defaults or violations by any other party to the Company Plans or Company Benefit Programs;
(3) All reports and disclosures relating to the Company Plans required to be filed with or furnished to governmental agencies, Company Plan participants or beneficiaries have been filed or furnished substantially in accordance with applicable law in a timely manner;
(4) Each Company Plan intended to be qualified under Section 401 of the Code satisfies the requirements of such Section and has received a favorable determination letter from the Internal Revenue Service regarding such qualified status and has not, since receipt of the most recent favorable determination letter, been amended or, to the knowledge of the Company, operated in a way which would adversely affect such qualified status. As to any Company Plan intended to be qualified under Section 401 of the Code, there has been no termination or partial termination of the Company Plan within the meaning of Section 411(d)(3) of the Code;
(5) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of the Company, threatened against, or with respect to, any of the Company Plans or Company Benefit Programs or their assets. To the knowledge of the Company, there is no matter pending (other than routine qualification determination filings) with respect to any of the Company Plans before the IRS, the United States Department of Labor or the Pension Benefit Guaranty Corporation ("PBGC");
(6) As to any Company Plan subject to Title IV of ERISA, there has been no event or condition which presents the material risk of a Company Plan termination, no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or Section 412 of the Code has been incurred, no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Regulation (S)2615.3 promulgated by the PBGC have not been waived) has occurred, no notice of intent to terminate the Company Plan has been given under Section 4041(c) of ERISA, no proceeding has been instituted under Section 4042 of ERISA to terminate the Company Plan, no liability to the PBGC has been incurred;
(7) No act, omission or transaction has occurred which would result in imposition on the Company or any of its Subsidiaries of (A) liability for a breach of fiduciary duty under Section 409 of ERISA, (B) a civil penalty assessed pursuant to subsections (c), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurancei) or hospitalization program (l) of Section 502 of ERISA or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether (C) a tax imposed pursuant to contract, arrangement, custom or informal understanding, or Chapter 43 of Subtitle D of the Code;
(8) With respect to any other “employee benefit plan” (as defined in , within the meaning of Section 3(3) of ERISA, which is not a Company Plan but which is sponsored, maintained or contributed to, or has been sponsored, maintained or contributed to within six years prior to the Effective Time, by any corporation, trade, business or entity under common control with the Company, within the meaning of Section 414(b), (c) or (m) of the Code or Section 4001 of ERISA ("Company Commonly Controlled Entity"), (A) no withdrawal liability, within the meaning of Section 4201 of ERISA, has been incurred, which withdrawal liability has not been satisfied, (B) no liability to the PBGC has been incurred by any Company Commonly Controlled Entity, which liability has not been satisfied, (C) no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or Section 412 of the Code has been incurred, and each material employment, severance, termination, consultancy or other similar agreement, in each case that (D) all contributions (including installments) to such plan required by Section 302 of ERISA and Section 412 of the Code have been timely made; and
(9) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (A) require the Company or any of its Subsidiaries to make a larger contribution to, or pay greater benefits under, any Company Subsidiary sponsors, participates in Plan or contributes Company Benefit Program than it otherwise would or (B) create or give rise to for the benefit of employees any additional vested rights or former employees service credits under any Company Plan or Company Benefit Program.
(iii) Except as disclosed on Schedule 3.1(n)(iii) of the Company and/or Letter, there are no severance agreements or employment agreements between the Company or any of its Subsidiaries (each, a “and any employee of the Company Employee Benefit Plan”) .
(b) A true or such Subsidiary. True and correct copy copies of each written Company Employee Bene- fit Plan, all such severance and a true and correct summary of any material unwritten Company Employee Benefit Plan, has employment agreements have been made available provided to Parent. A true and correct copy Except as disclosed on Schedule 3.1(n)(iii) of the most re- cent Company Letter, (A) neither the Company nor any of its Subsidiaries has any consulting agreement or arrangement with any person involving annual report (Form 5500 Series)compensation in excess of $100,000, actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has been supplied except as are terminable without penalty upon one month's notice or made available to Parent.
(c) Except as would not, individually or in the aggregate, be material: (i) All Company Employee Benefit Plans comply and have been administered in compliance in all material respects with all applicable re- quirements of Lawless, and (B) no event has occurred that would reasonably be expected to cause any such Company Employee Benefit Plan to fail to comply with such requirements and no notice has been stock or other security issued by the Company or any Governmental Entity question- ing of its Subsidiaries forms or challenging such compliancehas formed a material part of the assets of any Company Plan or Company Benefit Program.
Appears in 1 contract
Samples: Merger Agreement (Tuboscope Vetco International Corp)
Pension and Benefit Plans; ERISA. (a) Section 3.12(a3.15(a) of the Company Disclosure Letter lists each mate- rial “employee welfare plan” and “employee pension benefit plan” sets forth (as those terms are re- spectively defined in Sections 3(1i) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA ”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit-sharing, unemployment compensation plan, vacation pay, severance pay, post-employment, supplemental employment or un- employment benefit plan or arrangement, bonus or benefit arrangement, insurance (in- cluding any self-insurance) or hospitalization program or any other fringe or other benefit or compensation plan, program or arrangement for any current or former employee, trus- tee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other all “employee benefit planplans,” (as defined in Section 3(3) of ERISA, and all material employee compensation and benefit plans, policies, arrangements or payroll practices, including, without limitation, severance pay, severance agreements, employment agreements, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, retirement, deferred compensation, bonus (including, without limitation, any retention bonus plan), long-term incentive, stock option, stock purchase, hospitalization, medical insurance, life insurance and each material employment, severance, termination, consultancy or other similar agreement, in each case that scholarship programs maintained by the Company or any Company Subsidiary sponsors, participates in or contributes to for the benefit of employees or former employees of the Company and/or Subsidiaries or with respect to which the Company or any of the Company Subsidiaries has any liability; and (eachii) all “employee pension benefit plans,” as defined in Section 3(2) of ERISA, maintained or contributed to by the Company or any trade or business (whether or not incorporated) which is under common control, or which is treated as a single employer, with the Company under Section 4.14(b), (c), (m) or (o) of the Code (a “Company ERISA Affiliate”) or to which the Company or any of the Company Subsidiaries or any Company ERISA Affiliate contributed or is obligated to contribute thereunder within six years prior to the Closing (the “Company Pension Plans”) (all such plans listed in clauses (i) and (ii) being hereinafter referred to as the “Company Employee Benefit PlanPlans”) ).
(b) A Except as set forth on Section 3.15(b) of the Company Disclosure Letter, true and correct copy complete copies of each written Company Employee Bene- fit Plan, and a true and correct summary of any material unwritten Company Employee Benefit Plan, has been made available to Parent. A true and correct copy of the most re- cent annual report (Form 5500 Series), actuarial report, annual financial report, summary plan description and IRS determination letter with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has related trust (or other funding or financing arrangement) and all amendments thereto have been supplied or made available to Parent, as have the most recent summary plan descriptions, administrative service agreements, investment management or advisory agreements, audit reports, fidelity bonds, and fiduciary liability policies for such Company Employee Benefit Plans, as well as (i) Form 5500s for each Company Employee Benefit Plan for each of the past three (3) years, (ii) all material correspondence with any Governmental Entity relating to any Company Employee Benefit Plan, and (iii) with respect to any Company Employee Benefit Plan intended to be qualified pursuant to Section 401(a) of the Code, a current IRS determination letter.
(c) All individual employment, consulting, termination, severance, change in control, retention, bonus, post employment and other compensation agreements, arrangements and plans existing prior to the execution of this Agreement or which will exist prior to the Closing, which are between the Company or a Company Subsidiary and any current or former trustee, director, officer or employee thereof, including the name of such current or former trustee, director, officer or employee, the type of agreement and the amount of any estimated severance payment (including estimated gross-up, if applicable) owed thereunder due to the transactions contemplated by this Agreement and any subsequent termination of employment, are listed in Section 3.15(c) of the Company Disclosure Letter (collectively, the “Company Employment Agreements”). Back to Contents
(d) The Company Pension Plans intended to qualify under Section 401 of the Code have received a favorable determination letter from the IRS and such determination has not been modified, revoked or limited, and, to the Knowledge of the Company, as of the Closing Date, nothing has occurred with respect to the operation of the Company Pension Plans that could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or Tax under ERISA or the Code.
(e) Except as would not, individually or in the aggregate, be material: have a Company Material Adverse Effect or except as disclosed in Section 3.15(e) of the Company Disclosure Letter:
(i) All Company Employee Benefit Plans comply and have been administered maintained in compliance in all material respects accordance with the terms of such plan and with all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable re- quirements Law.
(ii) None of Lawthe Company Pension Plans is a “multiemployer plan”, as defined in Section 3(37) of ERISA (“Company Multiemployer Plan”), and neither the Company nor any Company ERISA Affiliate has at any time in the past sponsored, contributed to any such Company Multiemployer Plan, or has any liabilities with respect to any such Company Multiemployer Plan.
(iii) Neither the Company nor any Company ERISA Affiliate has ever maintained, sponsored, contributed to or otherwise incurred any present or contingent liability with respect to any “single-employer plan”, as defined in Section 4001(a)(15) of ERISA, and neither the Company nor any Company ERISA Affiliate has any present or contingent liability that is subject to Title IV of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA, and no event has events have occurred and no circumstances exist that would could reasonably be expected to cause result in any such liability to the Company or any Company ERISA Affiliate.
(iv) There is no liability for breaches of fiduciary duty in connection with Company Employee Benefit Plans, and neither the Company nor any of the Company Subsidiaries or any “party in interest” or “disqualified person” with respect to Company Employee Benefit Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA.
(v) There are no actions, disputes, suits, claims, arbitration or legal, administrative or other proceeding or governmental investigation pending (other than routine claims for benefits) or, to the Knowledge of the Company, threatened, alleging any breach of the terms of any Company Employee Benefit Plan or of any fiduciary duties thereunder or violation of any applicable Law with respect to any such Company Employee Benefit Plan. Back to Contents
(vi) All contributions, premiums and other payments required by Law or any Company Employee Benefit Plan or applicable collective bargaining agreement have been made under any such plan to fail any fund, trust or account established thereunder or in connection therewith by the due date thereof, and no amounts are or will be due to comply the Pension Benefit Guaranty Corporation as of the Closing Date (except for premiums in the ordinary course of business, which will be payable by the Company); and any and all contributions, premiums and other payments with respect to compensation or service before and through the Closing Date, or otherwise with respect to periods before and through the Closing Date, due from any of the Company or its Company ERISA Affiliates to, under or on account of each Company Employee Benefit Plan shall have been paid prior to the Closing Date or shall have been fully reserved and provided for or accrued on the Company financial statements.
(vii) The Company and Company ERISA Affiliates have complied with the requirements of Section 4980B of the Code and Parts 6 and 7 of Subtitle B of Title I of ERISA regarding health care coverage under Company Employee Benefit Plans.
(viii) No amount has been paid by the Company or any Company Subsidiaries, and no amount is expected to be paid by the Company or any Company Subsidiaries, which would be subject to the provisions of Section 162(m) of the Code such that all or a part of such payments would not be deductible by the payor.
(ix) Each Company Employee Benefit Plan may be unilaterally amended or terminated in its entirety by the Company except as to benefits accrued thereunder prior to amendment or termination and except for the rights of third-party administrators under the Company’s Contracts with such requirements administrators, which Contracts have been previously provided to Parent.
(f) Except as set forth in Section 3.15(f) of the Company Disclosure Letter, neither the execution and no notice has been issued by delivery of this Agreement nor the consummation of the transactions contemplated hereby, whether alone, or in connection with any Governmental Entity question- ing other event, will (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or challenging such compliancenoncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any of the Company Subsidiaries; (ii) increase any benefits otherwise payable under any Company Employee Benefit Plan or any Company Employment Agreement; (iii) result in the acceleration of the time of payment or vesting of any Company Options or any other rights or benefits; or (iv) result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any of the Company Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Brandywine Operating Partnership Lp /Pa)
