Pension and Benefit Plans; ERISA. (i) Schedule 4.1(k) sets forth a complete and correct list of: (A) all "employee benefit plans", as defined in Section 3(3) of ERISA, maintained 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 ("ERISA Affiliate"), or to which the Company or any of its ERISA Affiliates has any obligation or liability, contingent or otherwise, other than any multiemployer plan as defined in either Section 3(37) or Section 4001(a)(3) of ERISA ("Benefit Plans"); and (B) all stock award, stock option or stock purchase benefit policies or arrangements and all material bonus or other incentive compensation, deferred compensation, salary continuation, disability, or other material employee benefit policies or arrangements which the Company or any of its ERISA Affiliates maintains or to which the Company or any of its ERISA Affiliates has any material obligation or liability (contingent or otherwise) (together with the agreements disclosed on Schedule 4.1(j), the "Employee Arrangements"). (ii) With respect to each Benefit Plan for which a Form 5500 is required to be filed, the Company or one of its Subsidiaries has timely filed such form with the Department of Labor for the last three years, and except as otherwise noted in Schedule 4.1(k), with respect to each Benefit Plan and Employee Arrangement, a complete and correct copy of each of the following documents (if applicable) has been made available to Purchaser: (A) the most recent plan and related trust documents, and all amendments thereto; (B) the most recent summary plan description, and all related summaries of material modifications thereto; (C) Form 5500 (including schedules and attachments) for the last three years; (D) the most recent IRS determination letter; and (E) actuarial reports for the last three years. (iii) Except as disclosed on Schedule 4.1(k), the Benefit Plans and their related trusts intended to qualify under Sections 401(a) and 501(a) of the Code, respectively, have received favorable determination letters from the IRS regarding the Tax Reform Act of 1986 with respect to such qualified status and nothing, to the best knowledge of the Company or any of its Subsidiaries, has occurred that could reasonably be expected to cause any such qualified status to change, which change would be material. (iv) All material contributions or other material payments required to have been made by the Company or any of its ERISA Affiliates to or under any Benefit Plan or Employee Arrangement by applicable law or the terms of such Benefit Plan or Employee Arrangement (or any agreement relating thereto) have been timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with generally accepted accounting principles. (v) The Benefit Plans and Employee Arrangements have been maintained and administered in all material respects in accordance with their terms and applicable laws, and all filings of applicable reports, documents and notices, the non-filing of which would have a Material Adverse Effect, have been timely made with the appropriate governmental agencies and plan participants and beneficiaries. (vi) Except as disclosed on Schedule 4.1(k), there are no pending or, to the best knowledge of the Company or any of its Subsidiaries, threatened actions, claims or proceedings against or relating to any Benefit Plan or Employee Arrangement (other than routine benefit claims by persons entitled to benefits thereunder) that would have a Material Adverse Effect. (vii) Except for the Employee Arrangements and as disclosed on Schedule 4.1(k), the Company and its ERISA Affiliates do not maintain or have an obligation to contribute to retiree life or retiree health plans which provide for continuing benefits or coverage, for 18 months or more, for current or former officers, directors, nonemployees or employees of the Company or any of its ERISA Affiliates except (A) as may be required under Part 6 of Title I of ERISA and at the sole expense of the participant or the participant's beneficiary or (B) a medical expense reimbursement account plan pursuant to Section 125 of the Code. (viii) Except as disclosed on Schedule 4.1(k) or specifically provided for herein, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment becoming due to any employee or group of employees of the Company or any of its Subsidiaries; (B) increase materially any benefits otherwise payable under any Benefit Plan or Employee Arrangement; or (C) result in the acceleration of the time of payment or vesting of any such material benefits. (ix) Except as disclosed on Schedule 4.1(k), no stock or other security issued by the Company or any ERISA Affiliate forms a part of the assets of any Benefit Plan. (x) The Company and its Subsidiaries have maintained workers' compensation coverage as required by applicable state law through purchase of insurance and not by self-insurance or otherwise, except as disclosed on Schedule 4.1(k). (xi) As to each Benefit Plan subject to Title IV of ERISA, since January 1, 1990, to the best knowledge of the Company and each of its Subsidiaries, no notice of intent to terminate has been given under Section 4041 of ERISA and no proceeding has been instituted under Section 4042 of ERISA to terminate, such that would result in a material liability to the Company or any ERISA Affiliates; no material unsatisfied liability to the Pension Benefit Guaranty Corporation ("PBGC") has been incurred; no material unsatisfied 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 the most recent financial statements and actuarial valuations including information regarding the assets and liabilities of each such Benefit Plan have been supplied to Parent. (xii) The provisions of this Section 4.1(k)(xii) shall only apply to Benefit Plans subject to Title IV of ERISA and Benefit Plans subject to Section 412 of the Code; concerning each Benefit Plan that is or has been subject to the funding requirements of Title I, Subtitle B, Part 3 of ERISA, the funding method used in connection with such plan is, and at all times has been, acceptable under ERISA, the actuarial assumptions employed in connection with determining the funding of each such plan are, and at all times have been, reasonable and satisfy the requirements of Section 412(c)(3) of the Code and Section 302(c)(3) of ERISA; Schedule 4.1(k) sets forth as of December 31, 1996, any premiums due to the PBGC for the most recently completed year; Schedule 4.1(k) sets forth a reasonable good faith estimate of material changes between December 31, 1996 and the date hereof in the actuarially determined present value of all benefit liabilities within the meaning of Section 4001(a)(16) of ERISA (determined on the basis of the assumptions used for funding purposes in the most recent actuarial reports for such Benefit Plans) ("Benefit Liabilities") or plan assets with respect to such Benefit Plans; the sum of the amount of unfunded Benefit Liabilities under all Benefit Plans (excluding each such plan with an amount of unfunded Benefit Liabilities of zero or less) is not more than $1,300,000, with respect to any such Benefit Plan, no such plan has been terminated or subject to a "spin-off" or "spin-off termination" or partial termination and no assets of any such plan have been used or employed in a manner so as to subject them to a material excise tax imposed under Section 4980 of the Code; each such Benefit Plan permits termination thereof, and any assets in excess of those required to pay Benefit Liabilities may be distributed to or for the benefit of the Company or its ERISA Affiliates, and Section 4044(d) of ERISA would not prevent such reversion; with respect to any such Benefit Plan, any significant reduction in the rate of future benefit accrual was preceded by an adequate and appropriate notice to the parties described in and as required by Section 204(h) of ERISA. (xiii) Neither the Company nor any of its ERISA Affiliates has, or will have, incurred by reason of the transactions contemplated by this Agreement any material liability under Section 4062(e) of ERISA. Except as disclosed on Schedule 4.1(k), neither the Company nor any of its ERISA Affiliates is a participant in any plan to which Sections 4063 or 4064 of ERISA apply. (xiv) Neither the Company nor any of its ERISA Affiliates has engaged in any transaction described under Section 4069 of ERISA nor has any lien been imposed with respect to a material amount on any of the Company, any ERISA Affiliate or any of their respective assets under Section 4068 of ERISA. (xv) The Company and its ERISA Affiliates have complied in all material respects with all requirements for premium payments, including any interest and penalty charges for late payment, due the PBGC with respect to each Benefit Plan and each separate plan year for which any premiums are required. Except as set forth in Schedule 4.1(k), and except for transactions required by this Agreement, since January 1, 1990, there has been no "reportable event" (within the meaning of Section 4043(b) or (c) of ERISA and regulations promulgated by the PBGC thereunder) with respect to any Benefit Plan subject to Title IV of ERISA for which notice to the PBGC has not, by rule or regulations, been waived which would have a Material Adverse Effect. Concerning both the Company and any ERISA Affiliate (A) since January 1, 1990, there has been no cessation of operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA which would have a Material Adverse Effect, (B) since January 1, 1990, there has been no withdrawal of a substantial employer from any Benefit Plan so as to become subject to the provisions of Section 4063 of ERISA which would have a Material Adverse Effect, (C) since January 1, 1990, there has been no cessation of contributions to any Benefit Plan subject to Section 4064(a) of ERISA which would have a Material Adverse Effect, (D) there is not now any material liability under Section 4064 of ERISA to any of Parent, Sub or any affiliates of Parent or Sub or the Company by reason of the termination of any Benefit Plan, (E) since January 1, 1990, there has been no amendment to any Benefit Plan that would require the furnishing of security under Section 401(a)(29) of the Code, and (F) there has been no event or circumstance, and, to the best knowledge of the Company or any of its Subsidiaries, there exists no event or circumstance which could reasonably be expected to result in any material liability being asserted by any Benefit Plan, the PBGC or any other person or entity under Title IV of ERISA against the Company or any ERISA Affiliate. With respect to any Benefit Plan, no lien has been imposed under Section 412(n) of the Code or Section 302(f) of ERISA with respect to a material amount nor is there any material liability for excise taxes imposed under Section 4971 of the Code; any notices to the PBGC delivered since January 1, 1990, under Section 412(n) of the Code or Section 302(f) of ERISA have heretofore been delivered to Parent; and copies of any notices required to be given to participants since January 1, 1990, under either Section 101(d) or Section 4011 of ERISA have previously been delivered to Parent. Except as described in Schedule 4.1(k), the PBGC has not communicated with the Company, its ERISA Affiliates or any of its agents or representatives concerning the transactions contemplated by the Agreement, nor any other transactions implemented by the Company or any of its ERISA Affiliates within the preceding five calendar years. (xvi) Since January 1, 1990, neither the Company nor any of its Subsidiaries has taken any action to vest participants in any overfunding in any Benefit Plans subject to Title IV of ERISA. (xvii) No act, omission or transaction has occurred which would result in imposition on the Company or an ERISA Affiliate of (A) material liability under Section 409 of ERISA for breach of fiduciary duty , (B) a material civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or (C) a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code. (A) Except as disclosed on Schedule 4.1(k), neither the Company nor any ERISA Affiliate contributes to, or has an obligation to contribute to, and has not within the preceding five years contributed to, or had an obligation to contribute to, a multiemployer plan subject to Title IV of ERISA as defined in Section 4001(a)(3) of ERISA (each such disclosed plan, a "Multiemployer Plan"), (B) all material contributions or other material payments required to have been made by the Company or any of its ERISA Affiliates to or under any Multiemployer Plan by applicable law or the terms of such Multiemployer Plan (or any agreement relating thereto) have been timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP, (C) there has been no complete or partial withdrawal from a Multiemployer Plan by the Company or any ERISA Affiliate so as to incur any material withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA), (D) if prior to the Effective Time any Multiemployer Plan were in "reorganization" (as defined in Section 4241 of ERISA) or "insolvent" as defined in Section 4245 of ERISA, the estimated present value of the aggregate increase in contributions to such Multiemployer Plan by the Company and its ERISA Affiliates over the estimated present value of contributions to such Multiemployer Plan by the Company and its ERISA Affiliates without regard to such reorganization or insolvency would not exceed $6,000,000 and would not have a Material Adverse Effect, (E) Schedule 4.1(k) sets forth the dollar amount of contributions made by the Company and its ERISA Affiliates with respect to each Multiemployer Plan for the current year and preceding five years, and (F) the aggregate dollar amount of withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA) which would be owed by the Company and its ERISA Affiliates to all Multiemployer Plans if the Company and its ERISA Affiliates ceased contributing to all such Multiemployer Plans immediately before the consummation of the transactions contemplated by this Agreement would not exceed $6,000,000, with respect to each multiemployer plan as defined in Section 3(37) of ERISA that is not a "Multiemployer Plan", as defined above, all material contributions or other material payments, required to have been made by the Company or any of the ERISA Affiliates to or under any such multiemployer plan by applicable law or the terms of such multiemployer plan (or any agreement relating thereto) have been, to the best knowledge of the Company of any of its Subsidiaries, timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP.
Appears in 1 contract
Pension and Benefit Plans; ERISA. (i) Section 3.1(j)(i) of the Disclosure Schedule 4.1(k) sets forth a true and complete and correct list of:
(A) all "employee benefit plans", ," as defined in Section 3(3) of ERISA, maintained 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 ("ERISA Affiliate"), or to which the Company or Company, any of its ERISA Affiliates Subsidiaries or DHDC has any obligation or liability, contingent or otherwise, other than any multiemployer plan as defined in either Section 3(37) or Section 4001(a)(3) of ERISA otherwise ("Benefit Plans"); and
(B) all stock awardemployment or consulting agreements, stock option or stock purchase benefit policies or arrangements and all material bonus or other incentive compensation, deferred compensation, salary continuationcontinuation during any absence from active employment for disability or other reasons, disabilityseverance, sick days, stock award, stock option, stock purchase or other equity-based plan or program, tuition assistance, club membership, employee discount, employee loan, or other material employee benefit vacation pay agreements, policies or arrangements which the Company or Company, any of its ERISA Affiliates Subsidiaries or DHDC maintains or to which the Company or any of its ERISA Affiliates has any material obligation or liability (contingent or otherwise) with respect to any current or former officer, director or employee of the Company, any of its Subsidiaries or DHDC (together with the agreements disclosed on Schedule 4.1(j), the "Employee Arrangements").
(ii) With respect to each Benefit Plan for which a Form 5500 is required to be filed, the Company or one of its Subsidiaries has timely filed such form with the Department of Labor for the last three years, and except as otherwise noted in Schedule 4.1(k), with respect to each Benefit Plan and Employee Arrangement, a true and complete and correct copy of each of the following documents (if applicable) has been made available to PurchaserTAGTCR: (A) the most recent plan and related trust documents, and all amendments theretothereto (or, in the case of an unwritten Employment Arrangement, a description thereof); (B) the most recent summary plan description, and all related summaries of material modifications thereto; (C) the most recent Form 5500 (including schedules and attachments) for the last three years); (D) the most recent IRS Internal Revenue Service determination letter; and (E) the most recent actuarial reports (including for the last three yearspurposes of Financial Accounting Standards Board report no. 87, 88, 106, 112 and 132) and (F) each written employment, consulting or individual severance or other compensation agreement, and all amendments thereto.
(iii) Except as disclosed on Schedule 4.1(kThe Company, its Subsidiaries and DHDC have not during the preceding six years had any obligation or liability (contingent or otherwise) with respect to a Benefit Plan which is described in Section 3(37); 4(b)(4), 4063 or 4064 of ERISA or which is subject to Section 412 of the Code or Title IV of ERISA.
(iv) The Benefit Plans and their related trusts intended to qualify under Sections 401(a) Section 401 and to be tax-exempt under Section 501(a) of the Code, respectively, Code have received favorable determination letters from the IRS regarding Internal Revenue Service. The Company is not aware of any event or circumstance that could result in the Tax Reform Act failure of 1986 with respect such Benefit Plans to such be so qualified status and nothing, or tax exempt. Any voluntary employee benefit association which provides benefits to the best knowledge current or former employees of the Company or any of and its Subsidiaries, has occurred that could reasonably be expected to cause any such qualified status to changeor their beneficiaries, which change would is intended to be materialqualified and is tax-exempt under Section 501(c)(9) of the Code has received a favorable determination letter from the Internal Revenue Service.
(ivv) All material contributions or other material payments required to have been made by the Company or any of Company, its ERISA Affiliates Subsidiaries and DHDC to or under any Benefit Plan or Employee Arrangement Arrangements by applicable law or the terms of such Benefit Plan or Employee Arrangement (or any agreement relating thereto) have been timely and properly made made, except for the failure to make such contribution or are properly accrued payment as will not, individually or in the aggregate, have a Material Adverse Effect on the Company's unaudited financial statements in accordance with generally accepted accounting principles.
(vvi) The Benefit Plans and Employee Arrangements comply in all material respects with applicable laws and have been maintained and administered in all material respects in accordance with their terms and applicable laws, and all filings of applicable reports, documents and notices, the non-filing of which would have a Material Adverse Effect, have been timely made with the appropriate governmental agencies and plan participants and beneficiaries.
(vivii) Except as disclosed on Schedule 4.1(k), there There are no pending or, to the best knowledge of the Company or any of its SubsidiariesCompany, threatened actions, claims or proceedings against or relating to any Benefit Plan or Employee Arrangement (other than routine benefit claims by persons Persons entitled to benefits thereunder) thereunder and those actions, claims and proceedings that would will not have a Material Adverse EffectEffect on the Company.
(viiviii) Except for the Employee Arrangements The Company, its Subsidiaries and as disclosed on Schedule 4.1(k), the Company and its ERISA Affiliates DHDC do not maintain or have an obligation to contribute to retiree life or retiree health plans which provide for continuing benefits or coverage, for 18 months or more, coverage for current or former officers, directors, nonemployees directors or employees of the Company or any of its ERISA Affiliates Subsidiaries except (A) as may be required under Part part 6 of Title I of ERISA and at the sole expense or applicable state law (after a termination of employment or service as a director for which coverage of the participant or the participant's beneficiary is charged at the maximum possible premium) or (B) a medical expense reimbursement account plan pursuant to Section 125 of the Code.
(viii) Except as disclosed on Schedule 4.1(k) or specifically provided for herein, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment becoming due to any employee or group of employees of the Company or any of its Subsidiaries; (B) increase materially any benefits otherwise payable under any Benefit Plan or Employee Arrangement; or (C) result in the acceleration of the time of payment or vesting of any such material benefits.
(ix) Except as disclosed on Schedule 4.1(k), no stock or other security issued by the Company or any ERISA Affiliate forms a part None of the assets of any Benefit PlanPlan is stock of the Company, any of its affiliates or DHDC, or property leased to or jointly owned by the Company, any of its affiliates or DHDC.
(x) The Company and Company, its Subsidiaries and DHDC have maintained workers' compensation coverage as required by applicable state law through purchase of insurance and not by self-insurance no liability (contingent or otherwise, except as disclosed on Schedule 4.1(k).
(xi) As to each Benefit Plan subject to Title IV of ERISA, since January 1, 1990, to the best knowledge of the Company and each of its Subsidiaries, no notice of intent to terminate has been given under Section 4041 of ERISA and no proceeding has been instituted under Section 4042 of ERISA to terminate, such that would result in a material liability to the Company or any ERISA Affiliates; no material unsatisfied liability to the Pension Benefit Guaranty Corporation ("PBGC") has been incurred; no material unsatisfied 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 the most recent financial statements and actuarial valuations including information regarding the assets and liabilities of each such Benefit Plan have been supplied to Parent.
(xii) The provisions of this Section 4.1(k)(xii) shall only apply to Benefit Plans subject to Title IV of ERISA and Benefit Plans subject to Section 412 of the Code; concerning each Benefit Plan that is or has been subject to the funding requirements of Title I, Subtitle B, Part 3 of ERISA, the funding method used in connection with such plan is, and at all times has been, acceptable under ERISA, the actuarial assumptions employed in connection with determining the funding of each such plan are, and at all times have been, reasonable and satisfy the requirements of Section 412(c)(3) of the Code and Section 302(c)(3) of ERISA; Schedule 4.1(k) sets forth as of December 31, 1996, any premiums due to the PBGC for the most recently completed year; Schedule 4.1(k) sets forth a reasonable good faith estimate of material changes between December 31, 1996 and the date hereof in the actuarially determined present value of all benefit liabilities within the meaning of Section 4001(a)(16) of ERISA (determined on the basis of the assumptions used for funding purposes in the most recent actuarial reports for such Benefit Plans) ("Benefit Liabilities") or plan assets with respect to such Benefit Plans; the sum of the amount of unfunded Benefit Liabilities under all Benefit Plans (excluding each such plan with an amount of unfunded Benefit Liabilities of zero or less) is not more than $1,300,000, with respect to any such Benefit Plan, no such plan has been terminated or subject to a "spin-off" or "spin-off termination" or partial termination and no assets of any such plan have been used or employed in a manner so as to subject them to a material excise tax imposed under Section 4980 of the Code; each such Benefit Plan permits termination thereof, and any assets in excess of those required to pay Benefit Liabilities may be distributed to or for the benefit of the Company or its ERISA Affiliates, and Section 4044(d) of ERISA would not prevent such reversion; with respect to any such Benefit Plan, any significant reduction in the rate of future benefit accrual was preceded by an adequate and appropriate notice to the parties described in and as required by Section 204(h) of ERISA.
(xiii) Neither the Company nor any of its ERISA Affiliates has, or will have, incurred by reason of the transactions contemplated by this Agreement any material liability under Section 4062(e) of ERISA. Except as disclosed on Schedule 4.1(k), neither the Company nor any of its ERISA Affiliates is a participant in any plan to which Sections 4063 or 4064 of ERISA apply.
(xiv) Neither the Company nor any of its ERISA Affiliates has engaged in any transaction described under Section 4069 of ERISA nor has any lien been imposed with respect to a material amount on any of the Company, any ERISA Affiliate or any of their respective assets under Section 4068 of ERISA.
(xv) The Company and its ERISA Affiliates have complied in all material respects with all requirements for premium payments, including any interest and penalty charges for late payment, due the PBGC with respect to each Benefit Plan and each separate plan year for which any premiums are required. Except as set forth in Schedule 4.1(k), and except for transactions required by this Agreement, since January 1, 1990, there has been no "reportable event" (within the meaning of Section 4043(b) or (c) of ERISA and regulations promulgated by the PBGC thereunder) with respect to any Benefit Plan subject to Title IV of ERISA for which notice to the PBGC has not, by rule or regulations, been waived which would have a Material Adverse Effect. Concerning both the Company and any ERISA Affiliate (A) since January 1, 1990, there has been no cessation of operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA which would have a Material Adverse Effect, (B) since January 1, 1990, there has been no withdrawal of a substantial employer from any Benefit Plan so as to become subject to the provisions of Section 4063 of ERISA which would have a Material Adverse Effect, (C) since January 1, 1990, there has been no cessation of contributions to any Benefit Plan subject to Section 4064(a) of ERISA which would have a Material Adverse Effect, (D) there is not now any material liability under Section 4064 of ERISA to any of Parent, Sub or any affiliates of Parent or Sub or the Company by reason of the termination a transfer of any Benefit Plan, (E) since January 1, 1990, there has been no amendment to any Benefit Plan that would require the furnishing of security under Section 401(a)(29) of the Code, and (F) there has been no event or circumstance, and, to the best knowledge of the Company or any of its Subsidiaries, there exists no event or circumstance which could reasonably be expected to result in any material liability being asserted by any Benefit Plan, the PBGC or any other person or entity under Title IV of ERISA against the Company or any ERISA Affiliate. With respect to any Benefit Plan, no lien has been imposed under Section 412(n) of the Code or Section 302(f) of ERISA with respect to a material amount nor is there any material liability for excise taxes imposed under Section 4971 of the Code; any notices to the PBGC delivered since January 1, 1990, under Section 412(n) of the Code or Section 302(f) of ERISA have heretofore been delivered to Parent; and copies of any notices required to be given to participants since January 1, 1990, under either Section 101(d) or Section 4011 of ERISA have previously been delivered to Parent. Except as described in Schedule 4.1(k), the PBGC has not communicated with the Company, its ERISA Affiliates or any of its agents or representatives concerning the transactions contemplated by the Agreement, nor any other transactions implemented by the Company or any of its ERISA Affiliates within the preceding five calendar yearsan underfunded pension plan.
(xvi) Since January 1, 1990, neither the Company nor any of its Subsidiaries has taken any action to vest participants in any overfunding in any Benefit Plans subject to Title IV of ERISA.
(xvii) No act, omission or transaction has occurred which would result in imposition on the Company or an ERISA Affiliate of (A) material liability under Section 409 of ERISA for breach of fiduciary duty , (B) a material civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or (C) a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code.
(A) Except as disclosed on Schedule 4.1(k), neither the Company nor any ERISA Affiliate contributes to, or has an obligation to contribute to, and has not within the preceding five years contributed to, or had an obligation to contribute to, a multiemployer plan subject to Title IV of ERISA as defined in Section 4001(a)(3) of ERISA (each such disclosed plan, a "Multiemployer Plan"), (B) all material contributions or other material payments required to have been made by the Company or any of its ERISA Affiliates to or under any Multiemployer Plan by applicable law or the terms of such Multiemployer Plan (or any agreement relating thereto) have been timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP, (C) there has been no complete or partial withdrawal from a Multiemployer Plan by the Company or any ERISA Affiliate so as to incur any material withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA), (D) if prior to the Effective Time any Multiemployer Plan were in "reorganization" (as defined in Section 4241 of ERISA) or "insolvent" as defined in Section 4245 of ERISA, the estimated present value of the aggregate increase in contributions to such Multiemployer Plan by the Company and its ERISA Affiliates over the estimated present value of contributions to such Multiemployer Plan by the Company and its ERISA Affiliates without regard to such reorganization or insolvency would not exceed $6,000,000 and would not have a Material Adverse Effect, (E) Schedule 4.1(k) sets forth the dollar amount of contributions made by the Company and its ERISA Affiliates with respect to each Multiemployer Plan for the current year and preceding five years, and (F) the aggregate dollar amount of withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA) which would be owed by the Company and its ERISA Affiliates to all Multiemployer Plans if the Company and its ERISA Affiliates ceased contributing to all such Multiemployer Plans immediately before the consummation of the transactions contemplated by this Agreement would not exceed $6,000,000, with respect to each multiemployer plan as defined in Section 3(37) of ERISA that is not a "Multiemployer Plan", as defined above, all material contributions or other material payments, required to have been made by the Company or any of the ERISA Affiliates to or under any such multiemployer plan by applicable law or the terms of such multiemployer plan (or any agreement relating thereto) have been, to the best knowledge of the Company of any of its Subsidiaries, timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP.
Appears in 1 contract
Pension and Benefit Plans; ERISA. (i) Schedule 4.1(k) sets forth a complete and correct list of:
(A) all "employee benefit plans", as defined in Section 3(3) of ERISA, maintained 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 ("ERISA Affiliate"), or to which the Company or any of its ERISA Affiliates has any obligation or liability, contingent or otherwise, other than any multiemployer plan as defined in either Section 3(37) or Section 4001(a)(3) of ERISA ("Benefit Plans"); and
(B) all stock award, stock option or stock purchase benefit policies or arrangements and all material bonus or other incentive compensation, deferred compensation, salary continuation, disability, or other material employee benefit policies or arrangements which the Company or any of its ERISA Affiliates maintains or to which the Company or any of its ERISA Affiliates has any material obligation or liability (contingent or otherwise) (together with the agreements disclosed on Schedule 4.1(j), the "Employee Arrangements").
(ii) With respect to each Benefit Plan for which a Form 5500 is required to be filed, the Company or one of its Subsidiaries has timely filed such form with the Department of Labor for the last three years, and except as otherwise noted in Schedule 4.1(k), with respect to each Benefit Plan and Employee Arrangement, a complete and correct copy of each of the following documents (if applicable) has been made available to Purchaser: (A) the most recent plan and related trust documents, and all amendments thereto; (B) the most recent summary plan description, and all related summaries of material modifications thereto; (C) Form 5500 (including schedules and attachments) for the last three years; (D) the most recent IRS determination letter; and (E) actuarial reports for the last three years.
(iii) Except as disclosed on Schedule 4.1(k), the Benefit Plans and their related trusts intended to qualify under Sections 401(a) and 501(a) of the Code, respectively, have received favorable determination letters from the IRS regarding the Tax Reform Act of 1986 with respect to such qualified status and nothing, to the best knowledge of the Company or any of its Subsidiaries, has occurred that could reasonably be expected to cause any such qualified status to change, which change would be material.
(iv) All material contributions or other material payments required to have been made by the Company or any of its ERISA Affiliates to or under any Benefit Plan or Employee Arrangement by applicable law or the terms of such Benefit Plan or Employee Arrangement (or any agreement relating thereto) have been timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with generally accepted accounting principles.
(v) The Benefit Plans and Employee Arrangements have been maintained and administered in all material respects in accordance with their terms and applicable laws, and all filings of applicable reports, documents and notices, the non-filing of which would have a Material Adverse Effect, have been timely made with the appropriate governmental agencies and plan participants and beneficiaries.
(vi) Except as disclosed on Schedule 4.1(k), there are no pending or, to the best knowledge of the Company or any of its Subsidiaries, threatened actions, claims or proceedings against or relating to any Benefit Plan or Employee Arrangement (other than routine benefit claims by persons entitled to benefits thereunder) that would have a Material Adverse Effect.
(vii) Except for the Employee Arrangements and as disclosed on Schedule 4.1(k), the Company and its ERISA Affiliates do not maintain or have an obligation to contribute to retiree life or retiree health plans which provide for continuing benefits or coverage, for 18 months or more, for current or former officers, directors, nonemployees or employees of the Company or any of its ERISA Affiliates except (A) as may be required under Part 6 of Title I of ERISA and at the sole expense of the participant or the participant's beneficiary or (B) a medical expense reimbursement account plan pursuant to Section 125 of the Code.
(viii) Except as disclosed on Schedule 4.1(k) or specifically provided for herein, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment becoming due to any employee or group of employees of the Company or any of its Subsidiaries; (B) increase materially any benefits otherwise payable under any Benefit Plan or Employee Arrangement; or (C) result in the acceleration of the time of payment or vesting of any such material benefits.
(ix) Except as disclosed on Schedule 4.1(k), no stock or other security issued by the Company or any ERISA Affiliate forms a part of the assets of any Benefit Plan.
(x) The Company and its Subsidiaries have maintained workers' compensation coverage as required by applicable state law through purchase of insurance and not by self-insurance or otherwise, except as disclosed on Schedule 4.1(k).
(xi) As to each Benefit Plan subject to Title IV of ERISA, since January 1, 1990, to the best knowledge of the Company and each of its Subsidiaries, no notice of intent to terminate has been given under Section 4041 of ERISA and no proceeding has been instituted under Section 4042 of ERISA to terminate, such that would result in a material liability to the Company or any ERISA Affiliates; no material unsatisfied liability to the Pension Benefit Guaranty Corporation ("PBGC") has been incurred; no material unsatisfied 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 the most recent financial statements and actuarial valuations including information regarding the assets and liabilities of each such Benefit Plan have been supplied to Parent.
(xii) The provisions of this Section 4.1(k)(xii) shall only apply to Benefit Plans subject to Title IV of ERISA and Benefit Plans subject to Section 412 of the Code; concerning each Benefit Plan that is or has been subject to the funding requirements of Title I, Subtitle B, Part 3 of ERISA, the funding method used in connection with such plan is, and at all times has been, acceptable under ERISA, the actuarial assumptions employed in connection with determining the funding of each such plan are, and at all times have been, reasonable and satisfy the requirements of Section 412(c)(3) of the Code and Section 302(c)(3) of ERISA; Schedule 4.1(k) sets forth as of December 31, 1996, any premiums due to the PBGC for the most recently completed year; Schedule 4.1(k) sets forth a reasonable good faith estimate of material changes between December 31, 1996 and the date hereof in the actuarially determined present value of all benefit liabilities within the meaning of Section 4001(a)(16) of ERISA (determined on the basis of the assumptions used for funding purposes in the most recent actuarial reports for such Benefit Plans) ("Benefit Liabilities") or plan assets with respect to such Benefit Plans; the sum of the amount of unfunded Benefit Liabilities under all Benefit Plans (excluding each such plan with an amount of unfunded Benefit Liabilities of zero or less) is not more than $1,300,000, with respect to any such Benefit Plan, no such plan has been terminated or subject to a "spin-off" or "spin-off termination" or partial termination and no assets of any such plan have been used or employed in a manner so as to subject them to a material excise tax imposed under Section 4980 of the Code; each such Benefit Plan permits termination thereof, and any assets in excess of those required to pay Benefit Liabilities may be distributed to or for the benefit of the Company or its ERISA Affiliates, and Section 4044(d) of ERISA would not prevent such reversion; with respect to any such Benefit Plan, any significant reduction in the rate of future benefit accrual was preceded by an adequate and appropriate notice to the parties described in and as required by Section 204(h) of ERISA.
(xiii) Neither the Company nor any of its ERISA Affiliates has, or will have, incurred by reason of the transactions contemplated by this Agreement any material liability under Section 4062(e) of ERISA. Except as disclosed on Schedule 4.1(k), neither the Company nor any of its ERISA Affiliates is a participant in any plan to which Sections 4063 or 4064 of ERISA apply.
(xiv) Neither the Company nor any of its ERISA Affiliates has engaged in any transaction described under Section 4069 of ERISA nor has any lien been imposed with respect to a material amount on any of the Company, any ERISA Affiliate or any of their respective assets under Section 4068 of ERISA.
(xv) The Company and its ERISA Affiliates have complied in all material respects with all requirements for premium payments, including any interest and penalty charges for late payment, due the PBGC with respect to each Benefit Plan and each separate plan year for which any premiums are required. Except as set forth in Schedule 4.1(k), and except for transactions required by this Agreement, since January 1, 1990, there has been no "reportable event" (within the meaning of Section 4043(b) or (c) of ERISA and regulations promulgated by the PBGC thereunder) with respect to any Benefit Plan subject to Title IV of ERISA for which notice to the PBGC has not, by rule or regulations, been waived which would have a Material Adverse Effect. Concerning both the Company and any ERISA Affiliate (A) since January 1, 1990, there has been no cessation of operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA which would have a Material Adverse Effect, (B) since January 1, 1990, there has been no withdrawal of a substantial employer from any Benefit Plan so as to become subject to the provisions of Section 4063 of ERISA which would have a Material Adverse Effect, (C) since January 1, 1990, there has been no cessation of contributions to any Benefit Plan subject to Section 4064(a) of ERISA which would have a Material Adverse Effect, (D) there is not now any material liability under Section 4064 of ERISA to any of Parent, Sub or any affiliates of Parent or Sub or the Company by reason of the termination of any Benefit Plan, (E) since January 1, 1990, there has been no amendment to any Benefit Plan that would require the furnishing of security under Section 401(a)(29) of the Code, and (F) there has been no event or circumstance, and, to the best knowledge of the Company or any of its Subsidiaries, there exists no event or circumstance which could reasonably be expected to result in any material liability being asserted by any Benefit Plan, the PBGC or any other person or entity under Title IV of ERISA against the Company or any ERISA Affiliate. With respect to any Benefit Plan, no lien has been imposed under Section 412(n) of the Code or Section 302(f) of ERISA with respect to a material amount nor is there any material liability for excise taxes imposed under Section 4971 of the Code; any notices to the PBGC delivered since January 1, 1990, under Section 412(n) of the Code or Section 302(f) of ERISA have heretofore been delivered to Parent; and copies of any notices required to be given to participants since January 1, 1990, under either Section 101(d) or Section 4011 of ERISA have previously been delivered to Parent. Except as described in Schedule 4.1(k), the PBGC has not communicated with the Company, its ERISA Affiliates or any of its agents or representatives concerning the transactions contemplated by the Agreement, nor any other transactions implemented by the Company or any of its ERISA Affiliates within the preceding five calendar years.
(xvi) Since January 1, 1990, neither the Company nor any of its Subsidiaries has taken any action to vest participants in any overfunding in any Benefit Plans subject to Title IV of ERISA.
(xvii) No act, omission or transaction has occurred which would result in imposition on the Company or an ERISA Affiliate of (A) material liability under Section 409 of ERISA for breach of fiduciary duty , (B) a material civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or (C) a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code.
(xviii) (A) Except as disclosed on Schedule 4.1(k), neither the Company nor any ERISA Affiliate contributes to, or has an obligation to contribute to, and has not within the preceding five years contributed to, or had an obligation to contribute to, a multiemployer plan subject to Title IV of ERISA as defined in Section 4001(a)(3) of ERISA (each such disclosed plan, a "Multiemployer Plan"), (B) all material contributions or other material payments required to have been made by the Company or any of its ERISA Affiliates to or under any Multiemployer Plan by applicable law or the terms of such Multiemployer Plan (or any agreement relating thereto) have been timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP, (C) there has been no complete or partial withdrawal from a Multiemployer Plan by the Company or any ERISA Affiliate so as to incur any material withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA), (D) if prior to the Effective Time any Multiemployer Plan were in "reorganization" (as defined in Section 4241 of ERISA) or "insolvent" as defined in Section 4245 of ERISA, the estimated present value of the aggregate increase in contributions to such Multiemployer Plan by the Company and its ERISA Affiliates over the estimated present value of contributions to such Multiemployer Plan by the Company and its ERISA Affiliates without regard to such reorganization or insolvency would not exceed $6,000,000 and would not have a Material Adverse Effect, (E) Schedule 4.1(k) sets forth the dollar amount of contributions made by the Company and its ERISA Affiliates with respect to each Multiemployer Plan for the current year and preceding five years, and (F) the aggregate dollar amount of withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA) which would be owed by the Company and its ERISA Affiliates to all Multiemployer Plans if the Company and its ERISA Affiliates ceased contributing to all such Multiemployer Plans immediately before the consummation of the transactions contemplated by this Agreement would not exceed $6,000,000, with respect to each multiemployer plan as defined in Section 3(37) of ERISA that is not a "Multiemployer Plan", as defined above, all material contributions or other material payments, required to have been made by the Company or any of the ERISA Affiliates to or under any such multiemployer plan by applicable law or the terms of such multiemployer plan (or any agreement relating thereto) have been, to the best knowledge of the Company of any of its Subsidiaries, timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP.
Appears in 1 contract
Pension and Benefit Plans; ERISA. (i) Section 3.1(j)(i) of the Disclosure Schedule 4.1(k) sets forth a true and complete and correct list of:
(A) all "employee benefit plans", ," as defined in Section 3(3) of ERISA, maintained 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 ("ERISA Affiliate"), or to which the Company or Company, any of its ERISA Affiliates Subsidiaries or DHDC has any obligation or liability, contingent or otherwise, other than any multiemployer plan as defined in either Section 3(37) or Section 4001(a)(3) of ERISA otherwise ("Benefit Plans"); and
(B) all stock awardemployment or consulting agreements, stock option or stock purchase benefit policies or arrangements and all material bonus or other incentive compensation, deferred compensation, salary continuationcontinuation during any absence from active employment for disability or other reasons, disabilityseverance, sick days, stock award, stock option, stock purchase or other equity-based plan or program, tuition assistance, club membership, employee discount, employee loan, or other material employee benefit vacation pay agreements, policies or arrangements which the Company or Company, any of its ERISA Affiliates Subsidiaries or DHDC maintains or to which the Company or any of its ERISA Affiliates has any material obligation or liability (contingent or otherwise) with respect to any current or former officer, director or employee of the Company, any of its Subsidiaries or DHDC (together with the agreements disclosed on Schedule 4.1(j), the "Employee Arrangements").
(ii) With respect to each Benefit Plan for which a Form 5500 is required to be filed, the Company or one of its Subsidiaries has timely filed such form with the Department of Labor for the last three years, and except as otherwise noted in Schedule 4.1(k), with respect to each Benefit Plan and Employee Arrangement, a true and complete and correct copy of each of the following documents (if applicable) has been made available to PurchaserTAGTCR: (A) the most recent plan and related trust documents, and all amendments theretothereto (or, in the case of an unwritten Employment Arrangement, a description thereof); (B) the most recent summary plan description, and all related summaries of material modifications thereto; (C) the most recent Form 5500 (including schedules and attachments) for the last three years); (D) the most recent IRS Internal Revenue Service determination letter; and (E) the most recent actuarial reports (including for the last three yearspurposes of Financial Accounting Standards Board report no. 87, 88, 106, 112 and 132) and (F) each written employment, consulting or individual severance or other compensation agreement, and all amendments thereto.
(iii) Except as disclosed on Schedule 4.1(kThe Company, its Subsidiaries and DHDC have not during the preceding six years had any obligation or liability (contingent or otherwise) with respect to a Benefit Plan which is described in Section 3(37); 4(b)(4), 4063 or 4064 of ERISA or which is subject to Section 412 of the Code or Title IV of ERISA.
(iv) The Benefit Plans and their related trusts intended to qualify under Sections 401(a) Section 401 and to be tax-exempt under Section 501(a) of the Code, respectively, Code have received favorable determination letters from the IRS regarding Internal Revenue Service. The Company is not aware of any event or circumstance that could result in the Tax Reform Act failure of 1986 with respect such Benefit Plans to such be so qualified status and nothing, or tax exempt. Any voluntary employee benefit association which provides benefits to the best knowledge current or former employees of the Company or any of and its Subsidiaries, has occurred that could reasonably be expected to cause any such qualified status to changeor their beneficiaries, which change would is intended to be materialqualified and is tax-exempt under Section 501(c)(9) of the Code has received a favorable determination letter from the Internal Revenue Service.
(ivv) All material contributions or other material payments required to have been made by the Company or any of Company, its ERISA Affiliates Subsidiaries and DHDC to or under any Benefit Plan or Employee Arrangement Arrangements by applicable law or the terms of such Benefit Plan or Employee Arrangement (or any agreement relating thereto) have been timely and properly made made, except for the failure to make such contribution or are properly accrued payment as will not, individually or in the aggregate, have a Material Adverse Effect on the Company's unaudited financial statements in accordance with generally accepted accounting principles.
(vvi) The Benefit Plans and Employee Arrangements comply in all material respects with applicable laws and have been maintained and administered in all material respects in accordance with their terms and applicable laws, and all filings of applicable reports, documents and notices, the non-filing of which would have a Material Adverse Effect, have been timely made with the appropriate governmental agencies and plan participants and beneficiaries.
(vivii) Except as disclosed on Schedule 4.1(k), there There are no pending or, to the best knowledge of the Company or any of its SubsidiariesCompany, threatened actions, claims or proceedings against or relating to any Benefit Plan or Employee Arrangement (other than routine benefit claims by persons Persons entitled to benefits thereunder) thereunder and those actions, claims and proceedings that would will not have a Material Adverse EffectEffect on the Company.
(viiviii) Except for the Employee Arrangements The Company, its Subsidiaries and as disclosed on Schedule 4.1(k), the Company and its ERISA Affiliates DHDC do not maintain or have an obligation to contribute to retiree life or retiree health plans which provide for continuing benefits or coverage, for 18 months or more, coverage for current or former officers, directors, nonemployees directors or employees of the Company or any of its ERISA Affiliates except (A) as may be required under Part 6 of Title I of ERISA and at the sole expense of the participant or the participant's beneficiary or (B) a medical expense reimbursement account plan pursuant to Section 125 of the Code.
(viii) Except as disclosed on Schedule 4.1(k) or specifically provided for herein, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment becoming due to any employee or group of employees of the Company or any of its Subsidiaries; (B) increase materially any benefits otherwise payable under any Benefit Plan or Employee Arrangement; or (C) result in the acceleration of the time of payment or vesting of any such material benefits.
(ix) Except as disclosed on Schedule 4.1(k), no stock or other security issued by the Company or any ERISA Affiliate forms a part of the assets of any Benefit Plan.
(x) The Company and its Subsidiaries have maintained workers' compensation coverage as required by applicable state law through purchase of insurance and not by self-insurance or otherwise, except as disclosed on Schedule 4.1(k).
(xi) As to each Benefit Plan subject to Title IV of ERISA, since January 1, 1990, to the best knowledge of the Company and each of its Subsidiaries, no notice of intent to terminate has been given under Section 4041 of ERISA and no proceeding has been instituted under Section 4042 of ERISA to terminate, such that would result in a material liability to the Company or any ERISA Affiliates; no material unsatisfied liability to the Pension Benefit Guaranty Corporation ("PBGC") has been incurred; no material unsatisfied 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 the most recent financial statements and actuarial valuations including information regarding the assets and liabilities of each such Benefit Plan have been supplied to Parent.
(xii) The provisions of this Section 4.1(k)(xii) shall only apply to Benefit Plans subject to Title IV of ERISA and Benefit Plans subject to Section 412 of the Code; concerning each Benefit Plan that is or has been subject to the funding requirements of Title I, Subtitle B, Part 3 of ERISA, the funding method used in connection with such plan is, and at all times has been, acceptable under ERISA, the actuarial assumptions employed in connection with determining the funding of each such plan are, and at all times have been, reasonable and satisfy the requirements of Section 412(c)(3) of the Code and Section 302(c)(3) of ERISA; Schedule 4.1(k) sets forth as of December 31, 1996, any premiums due to the PBGC for the most recently completed year; Schedule 4.1(k) sets forth a reasonable good faith estimate of material changes between December 31, 1996 and the date hereof in the actuarially determined present value of all benefit liabilities within the meaning of Section 4001(a)(16) of ERISA (determined on the basis of the assumptions used for funding purposes in the most recent actuarial reports for such Benefit Plans) ("Benefit Liabilities") or plan assets with respect to such Benefit Plans; the sum of the amount of unfunded Benefit Liabilities under all Benefit Plans (excluding each such plan with an amount of unfunded Benefit Liabilities of zero or less) is not more than $1,300,000, with respect to any such Benefit Plan, no such plan has been terminated or subject to a "spin-off" or "spin-off termination" or partial termination and no assets of any such plan have been used or employed in a manner so as to subject them to a material excise tax imposed under Section 4980 of the Code; each such Benefit Plan permits termination thereof, and any assets in excess of those required to pay Benefit Liabilities may be distributed to or for the benefit of the Company or its ERISA Affiliates, and Section 4044(d) of ERISA would not prevent such reversion; with respect to any such Benefit Plan, any significant reduction in the rate of future benefit accrual was preceded by an adequate and appropriate notice to the parties described in and as required by Section 204(h) of ERISA.
(xiii) Neither the Company nor any of its ERISA Affiliates has, or will have, incurred by reason of the transactions contemplated by this Agreement any material liability under Section 4062(e) of ERISA. Except as disclosed on Schedule 4.1(k), neither the Company nor any of its ERISA Affiliates is a participant in any plan to which Sections 4063 or 4064 of ERISA apply.
(xiv) Neither the Company nor any of its ERISA Affiliates has engaged in any transaction described under Section 4069 of ERISA nor has any lien been imposed with respect to a material amount on any of the Company, any ERISA Affiliate or any of their respective assets under Section 4068 of ERISA.
(xv) The Company and its ERISA Affiliates have complied in all material respects with all requirements for premium payments, including any interest and penalty charges for late payment, due the PBGC with respect to each Benefit Plan and each separate plan year for which any premiums are required. Except as set forth in Schedule 4.1(k), and except for transactions required by this Agreement, since January 1, 1990, there has been no "reportable event" (within the meaning of Section 4043(b) or (c) of ERISA and regulations promulgated by the PBGC thereunder) with respect to any Benefit Plan subject to Title IV of ERISA for which notice to the PBGC has not, by rule or regulations, been waived which would have a Material Adverse Effect. Concerning both the Company and any ERISA Affiliate (A) since January 1, 1990, there has been no cessation of operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA which would have a Material Adverse Effect, (B) since January 1, 1990, there has been no withdrawal of a substantial employer from any Benefit Plan so as to become subject to the provisions of Section 4063 of ERISA which would have a Material Adverse Effect, (C) since January 1, 1990, there has been no cessation of contributions to any Benefit Plan subject to Section 4064(a) of ERISA which would have a Material Adverse Effect, (D) there is not now any material liability under Section 4064 of ERISA to any of Parent, Sub or any affiliates of Parent or Sub or the Company by reason of the termination of any Benefit Plan, (E) since January 1, 1990, there has been no amendment to any Benefit Plan that would require the furnishing of security under Section 401(a)(29) of the Code, and (F) there has been no event or circumstance, and, to the best knowledge of the Company or any of its Subsidiaries, there exists no event or circumstance which could reasonably be expected to result in any material liability being asserted by any Benefit Plan, the PBGC or any other person or entity under Title IV of ERISA against the Company or any ERISA Affiliate. With respect to any Benefit Plan, no lien has been imposed under Section 412(n) of the Code or Section 302(f) of ERISA with respect to a material amount nor is there any material liability for excise taxes imposed under Section 4971 of the Code; any notices to the PBGC delivered since January 1, 1990, under Section 412(n) of the Code or Section 302(f) of ERISA have heretofore been delivered to Parent; and copies of any notices required to be given to participants since January 1, 1990, under either Section 101(d) or Section 4011 of ERISA have previously been delivered to Parent. Except as described in Schedule 4.1(k), the PBGC has not communicated with the Company, its ERISA Affiliates or any of its agents or representatives concerning the transactions contemplated by the Agreement, nor any other transactions implemented by the Company or any of its ERISA Affiliates within the preceding five calendar years.
(xvi) Since January 1, 1990, neither the Company nor any of its Subsidiaries has taken any action to vest participants in any overfunding in any Benefit Plans subject to Title IV of ERISA.
(xvii) No act, omission or transaction has occurred which would result in imposition on the Company or an ERISA Affiliate of (A) material liability under Section 409 of ERISA for breach of fiduciary duty , (B) a material civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or (C) a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code.
(A) Except as disclosed on Schedule 4.1(k), neither the Company nor any ERISA Affiliate contributes to, or has an obligation to contribute to, and has not within the preceding five years contributed to, or had an obligation to contribute to, a multiemployer plan subject to Title IV of ERISA as defined in Section 4001(a)(3) of ERISA (each such disclosed plan, a "Multiemployer Plan"), (B) all material contributions or other material payments required to have been made by the Company or any of its ERISA Affiliates to or under any Multiemployer Plan by applicable law or the terms of such Multiemployer Plan (or any agreement relating thereto) have been timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP, (C) there has been no complete or partial withdrawal from a Multiemployer Plan by the Company or any ERISA Affiliate so as to incur any material withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA), (D) if prior to the Effective Time any Multiemployer Plan were in "reorganization" (as defined in Section 4241 of ERISA) or "insolvent" as defined in Section 4245 of ERISA, the estimated present value of the aggregate increase in contributions to such Multiemployer Plan by the Company and its ERISA Affiliates over the estimated present value of contributions to such Multiemployer Plan by the Company and its ERISA Affiliates without regard to such reorganization or insolvency would not exceed $6,000,000 and would not have a Material Adverse Effect, (E) Schedule 4.1(k) sets forth the dollar amount of contributions made by the Company and its ERISA Affiliates with respect to each Multiemployer Plan for the current year and preceding five years, and (F) the aggregate dollar amount of withdrawal liability as defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA) which would be owed by the Company and its ERISA Affiliates to all Multiemployer Plans if the Company and its ERISA Affiliates ceased contributing to all such Multiemployer Plans immediately before the consummation of the transactions contemplated by this Agreement would not exceed $6,000,000, with respect to each multiemployer plan as defined in Section 3(37) of ERISA that is not a "Multiemployer Plan", as defined above, all material contributions or other material payments, required to have been made by the Company or any of the ERISA Affiliates to or under any such multiemployer plan by applicable law or the terms of such multiemployer plan (or any agreement relating thereto) have been, to the best knowledge of the Company of any of its Subsidiaries, timely and properly made or are properly accrued on the Company's unaudited financial statements in accordance with GAAP.the
Appears in 1 contract
Samples: Merger Agreement (Compdent Corp)
