Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that: (a) Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance, change in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance (including any self-insured arrangements), health or medical benefits, disability or sick leave benefits, post-employment or retirement benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee Plans.” (b) None of the Company, any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan. (c) None of the Company, any ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”). (d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans. (e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code. (f) As to all Employees Plans: (i) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance; (ii) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code and ERISA, a favorable determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code; (iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and (iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA. (g) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose. (h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder. (i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code. (j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 4 contracts
Samples: Merger Agreement (Battle Mountain Gold Exploration Corp.), Agreement and Plan of Merger (Royal Gold Inc), Agreement and Plan of Merger (Battle Mountain Gold Exploration Corp.)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance, change in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance (including any self-insured arrangements), health or medical benefits, disability or sick leave benefits, post-employment or retirement benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee Plans.”
(b) None of the Company, any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan.
(c) None of the Company, any ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(fe) As to all Employees Plans:
(i) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously are maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code and ERISA, a favorable determination letter has been received from the IRS Internal Revenue Service with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRSInternal Revenue Service) and no event event, to the Company’s Knowledge, has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) to the Company’s Knowledge, there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), ) or 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor nor, to the Company’s Knowledge, any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(gf) All individuals considered by the Company and or any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(hg) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(ih) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Quovadx Inc), Merger Agreement (Quovadx Inc)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct Company has delivered to Acquiror prior to the execution of this Merger Agreement true and complete list identifying each material “employee benefit plan,” as defined in Section 3(3copies (or written descriptions, where no written plan exists) (and, where applicable, the most recent actuarial, valuation or annual (Form 5500 with attachments) reports with respect thereto) of ERISAall pension, each employment, severance, change in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensationretirement, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, stock option, employee stock ownership, severance pay, vacation, bonus or other incentive plans, employment agreements of executive officers or change in control agreements, medical, vision, dental or other health plans, life insurance (including any self-insured arrangements)plans and other employee benefit plans or fringe benefit plans, health programs, arrangements or medical benefitsAgreements, disability including, without limitation, all Company Benefit Plans. No Company Benefit Plan is or sick leave benefits, post-employment has been a Multiemployer Plan or retirement benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the could subject Company or any ERISA Affiliate and covers any Employee Company Subsidiary to liability under Sections 4063 or Former Employee 4064 of ERISA. Company has set forth in the Company Disclosure Letter (i) a list of all of the Company or any ERISA Affiliate. Copies Benefit Plans, (ii) a list of such plans the Company Benefit Plans that are Company Pension Plans, (iii) a list of the Company Benefit Plans that are Company Stock Plans, and arrangements (andiv) a list of the number of shares covered by, if applicableexercise prices for, related trust or funding agreements or insurance policies) and holders of, all amendments thereto stock options granted and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as available for grant under the “Employee Company Stock Plans.”
(b) None From their inception, all Company Benefit Plans have been and are in material compliance (in form and in operation) with the applicable terms of ERISA and the Company, any of its ERISA Affiliates Code and any predecessor thereof sponsorsother applicable Laws, maintains including the terms of such plans.
(c) All liabilities (contingent or contributes to, otherwise) under any Company Benefit Plan are fully accrued or has reserved against in the past sponsored, maintained or contributed to, any Employee Company Financial Statement in accordance with GAAP. Each Company Pension Plan that is subject to Title IV of ERISA or any defined benefit plan.
(c) None Section 412 of the Company, Code satisfies the minimum funding standards (without regard to any ERISA Affiliate waiver) provided for in Section 412 of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”)Code.
(d) Neither the Company nor any ERISA Affiliate sponsors Company Subsidiary has any Employee Plansobligations for retiree health or other welfare benefits for retirees under any Company Benefit Plan or otherwise except as required by Section 4908(b) of the Code and Sections 601-608 of ERISA, and there are no restrictions on the rights of Company or any Company Subsidiary to unilaterally amend or terminate any such Company Benefit Plan at any time without incurring any material liability thereunder.
(e) There is no current or projected Liability in respect Neither the execution and delivery of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B this Merger Agreement nor the consummation of the Codetransactions contemplated hereby will (i) result in any payment (including, without limitation, severance, golden parachute or otherwise) becoming due to any person under any Company Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any such benefits.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Each Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans Benefit Plan which is intended to qualify to comply with be qualified under Section 401 401(a) or 401(k) of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply qualified as a voluntary employees' beneficiary association under Sections 501(a) and complied in form and in operation with all applicable requirements 501(c)(9) of the Code and ERISA, has received a favorable determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan that it is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) so qualified and so exempt, and no fact or event has occurred that will could adversely affect such qualified or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISAstatus.
(g) All individuals considered by the Company and each Company Subsidiary have not incurred any ERISA Affiliate to be independent contractors arematerial liability under, and could only be have complied in all material respects with, the Worker Adjustment Retraining Notification Act and the regulations promulgated thereunder and do not reasonably considered expect to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or incur any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments such material liability as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject actions taken or not taken prior to the provisions of Section 409A consummation of the CodeMerger.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Titan Corp), Merger Agreement (Titan Corp)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) All accrued obligations of ERISAADV applicable to its employees, each employmentwhether arising by operation of law, severance, change in control or similar by contract, planby past custom or otherwise, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option payments by ADV to trusts or other stock-related rights funds or other forms of incentive or deferred compensationto any governmental agency, insurance (including any self-insured arrangements), health or medical with respect to unemployment compensation benefits, disability or sick leave benefits, post-employment or retirement social security benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee other benefits for its employees with respect to the employment of said employees through the date hereof have been paid or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (andadequate accruals therefor have been made on, if as applicable, related trust or funding agreements or insurance policies) the Books and all amendments thereto Records of ADV and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee PlansADV Financial Statements.”
(b) None Except as disclosed on Schedule 3.22, as of the Company, date hereof:
(1) Neither ADV nor any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes has any obligations to contribute to, or has in the past sponsored, maintained effect or contributed tohas committed to adopt, any Employee Pension Plan subject to Title IV of ERISA or any defined benefit plan.Welfare Plan;
(c2) None of the Company, any Each ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered Plan conforms in all material respects in form and in operation with to all applicable Lawslaws and orders, all required returns (including without limitation information ERISA and the applicable provisions of the Code. All notices, reports, returns) have been prepared in accordance with all applicable Laws , applications and disclosures have been timely filed made which are required to be made to the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, any participants in accordance the ERISA Plans, any trustee, or any insurer with applicable Laws, and neither respect to the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliancePlans;
(ii3) ADV and its ERISA Affiliates have made or provided for (with fully-funded reserves) all Employee contributions heretofore required to have been made under all of the ERISA Plans, and will, by the Closing, have made or provided for (with fully-funded reserves) all contributions required to be made on or before the Closing under all such plans;
(4) No ERISA Plan nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction which may subject any of such ERISA Plans, any such trust, or any party dealing with such ERISA Plans intended or any such trust, to qualify the Tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to comply with a civil penalty imposed by Section 502 of ERISA;
(5) There are no material actions, claims or lawsuits which have been asserted or instituted against the assets of any of the trusts under the ERISA Plans, and no basis for such action, claim or lawsuit exists, and no such action, claim or lawsuit has been threatened;
(6) ADV has not agreed to indemnify any other party for any liabilities or expenses which have been or may in the future be incurred by or asserted against such other party in respect of any ERISA Plan;
(7) Each Pension Plan constituting one of the ERISA Plans is qualified under Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements Code, each of the Code and ERISA, a favorable determination letter has been received from the IRS trusts maintained with respect to each thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred which would cause the loss of such Plan (qualification or exemption or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification imposition of any such Plan or to a tax penalty under Section 511 4971 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 8) The assets of ERISA or Section 4975 each Pension Plan constituting one of the CodeERISA Plans (including Pension Plans maintained by an ERISA Affiliate) are sufficient to pay all liabilities of the plan, including, without limitation, all liabilities to pay benefits to any past or present participant or beneficiary in such plan, any expense incurred in administering the plan, and any liabilities for Taxes which may be imposed on the plan or on any trust maintained in connection with the plan;
(9) The value of all accrued benefits under each Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained by an ERISA Affiliate) which is a "defined benefit plan" within the meaning of Section 3(35) of ERISA, including each "multi-employer plan" within the meaning of Section 3(37) of ERISA, does not exceed, on an accrual basis, the aggregate value of the assets of each such plan;
(10) There has been no "reportable event," within the meaning of Section 4043(b) of ERISA, with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Video City Inc)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “The employee pension benefit plan,” as defined in plans, within the meaning of Section 3(33(2) of ERISA, each employment, severance, change in control or similar contract, plan, arrangement or policy maintained by UJB and each other plan or arrangement providing for compensation, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance its subsidiaries on the date hereof (including any self-insured arrangementsindividually a "UJB Plan" and collectively the "UJB Plans"), health or medical benefitsin their present form, disability or sick leave benefits, post-employment or retirement benefits comply in all material respects with all applicable requirements under ERISA and fringe benefits (each, an “Employee Plan”) which the Code. Each UJB Plan and the trust created thereunder is maintained, administered or contributed to by the Company or any ERISA Affiliate qualified and covers any Employee or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (and, if applicable, related trust or funding agreements or insurance policiesexempt under Sections 401(a) and all amendments thereto and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee Plans.”
(b501(a) None of the Company, any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan.
(c) None of the Company, any ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As , and UJB or the subsidiary whose employees are covered by such UJB Plan has received from the IRS a determination letter to all Employees Plans:
(i) all that effect. No event has occurred and to the knowledge of UJB there has been no omission or failure to act which would adversely affect such Plans comply and have qualification or exemption. Each UJB Plan has been administered and communicated to the participants and beneficiaries in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws its terms and have ERISA. No employee of UJB or any subsidiary whose employees are covered by a UJB Plan has engaged in any action or, to the knowledge of UJB, has failed to act in such manner that, as a result of such action or failure, a participant or beneficiary or a nonparticipating employee has been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate denied benefits properly due or to become due under such UJB Plan or has received any outstanding written notice from any Governmental been misled as to his or quasi-Governmental Body questioning or challenging her rights under such compliance;
(ii) all Employee Plans intended UJB Plan. No UJB Plan is subject to qualify to comply with Section 401 412 of the Code maintained or previously maintained by the Company or Title IV of ERISA. No person has engaged in any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code and ERISA, a favorable determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification of prohibited transaction involving any such UJB Plan or to a tax under Section 511 associated trust within the meaning of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code. There are no pending or threatened claims (other than routine claims for benefits) with respect to against the UJB Plans or any Employee Plan and neither the Company nor fiduciary thereof which would subject UJB or any of its ERISA Affiliates subsidiaries to a material liability. All reports, filings, returns and disclosures required to be made to the participants and beneficiaries, other employees, the SEC, the IRS, the U.S. Department of Labor or any other governmental agency pursuant to the Code, ERISA, or other applicable statute or regulation have been made in a timely manner and all such reports, filings, returns and disclosures were true and correct in all material respects. No material liability has otherwise been, or is likely to be, incurred on account of delinquent or incomplete compliance or failure to comply with such requirements. There has been no change in control of any UJB Plan.
(b) All bonus, deferred compensation, profit-sharing, retirement, pension, stock option, stock award and stock purchase plans and all other employee benefit plans, including medical, major medical, disability, life insurance or dental plans covering employees generally maintained by UJB or any of its subsidiaries other than UJB Plans (collectively "UJB Benefit Plans") comply in all material respects with all applicable requirements imposed by the Securities Act, the Exchange Act, ERISA, the Code, and all applicable rules and regulations thereunder. The UJB Benefit Plans have been administered and communicated to the participants and beneficiaries in all material respects in accordance with their terms and ERISA, and no employee of UJB or any of its subsidiaries has engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by action or, to the Company or any ERISA Affiliate that have given rise knowledge of UJB, has failed to or could reasonably be expected to give rise to material finesact in such manner that, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement such action or failure, a participant or beneficiary or a nonparticipating employee has been denied benefits properly due or to become due under the UJB Benefit Plans or has been misled as to their rights under the UJB Benefit Plans. There are no pending or threatened claims (other than routine claims for benefits) against the UJB Benefit Plans which would subject UJB or any of its subsidiaries to a material liability. Any trust which is intended to be tax-exempt has received a determination letter from the IRS to that effect and no event has occurred which would adversely affect such exemption. All reports, filings, returns and disclosures required to be made to the transactions contemplated hereunder.
(i) All options that participants and beneficiaries, other employees of UJB or any of its subsidiaries, the SEC, the IRS, the U.S. Department of Labor and any other governmental agency pursuant to the Code, ERISA, or other applicable statute or regulation, if any, have been granted by the Company made in a timely manner and all such reports, filings, returns and disclosures were true and correct in all material respects. No material liability has been, or is likely to Employees that purport be, incurred on account of delinquent or incomplete compliance or failure to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Coderequirements.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(aExcept as set forth in the Company Disclosure Schedule, the Company (i) contains does not maintain any Plan or material Other Arrangement, (ii) is not a correct party to any Plan or material Other Arrangement and (iii) has no obligations under any Plan or material Other Arrangement.
(b) The Company has Furnished or otherwise made available to the Parent true and complete list identifying copies of each of the following Documents: (i) the Documents setting forth the terms of each Plan; (ii) for the most recent plan year, all annual reports (Form 5500 series) on each Plan that have been filed with any governmental agency; (iii) the current summary plan description and subsequent summaries of material modifications for each Title I Plan; (iv) all DOL opinions on any Plan and all correspondence relating to the request for and receipt of each opinion; (v) all IRS rulings, opinions or technical advice relating to any Plan; and (vi) all Contracts with service providers or fiduciaries for providing services on behalf of any Plan. For each material “employee benefit plan,” as defined in Section 3(3) Other Arrangement, the Company has furnished or otherwise made available to the Parent true and complete copies of ERISAeach policy, each employment, severance, change in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option Contract or other stock-related rights Document setting forth or other forms explaining the terms of incentive or deferred compensation, insurance the Other Arrangement.
(including any self-insured arrangements), health or medical benefits, disability or sick leave benefits, post-employment or retirement benefits and fringe benefits (each, an “Employee Plan”c) which is maintained, administered or contributed to No Plan maintained by the Company or by any ERISA Affiliate and covers any Employee or Former Employee member of a controlled group (within the meaning of Section 401(14) of the Code) in which the Company is a member is a Multiemployer Plan.
(d) No Plan is an ESOP.
(e) No Plan maintained by the Company or by any ERISA Affiliate. Copies member of such plans and arrangements a controlled group (and, if applicable, related trust or funding agreements or insurance policieswithin the meaning of Section 401(14) and all amendments thereto and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee Plans.”
(b) None of the Company, any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has Code) in which the past sponsored, maintained or contributed to, any Employee Plan Company is a member is subject to Title IV of ERISA or any defined benefit planERISA.
(cf) None The Company Disclosure Schedule sets forth the contributions to each Plan and Other Arrangement that are unpaid as of the Company, any ERISA Affiliate date of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”)this Agreement.
(dg) The Company has made all contributions and other payments required by and due under the terms of each Plan and Other Arrangement and has taken no action (including, without limitation, actions required by Law) relating to any Plan or Other Arrangement that will increase the Company's obligation under any Plan or Other Arrangement.
(h) The Company Disclosure Schedule sets forth a list of all Qualified Plans. All Qualified Plans and any related trust agreements or annuity agreements (or any other funding Document) comply and have complied in all material respects with ERISA, the Code (including, without limitation, the requirements for Tax qualification described in Section 401 thereof), and all other Laws. The trusts established under such Plans are exempt from federal income taxes under Section 501(a) of the Code. The Company has received determination letters issued by the IRS with respect to each Qualified Plan, and the Company has Furnished to the Parent true and complete copies of all such determination letters and all correspondence relating to the applications therefor.
(i) Neither the Company nor any of the Plans has engaged in a violation of Section 406(a) or 406(b) of ERISA Affiliate sponsors any Employee Plans.
(e) There is for which no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax exemption exists under Section 4980B 408 of ERISA or a "prohibited transaction" (as such term is defined in Section 4975(c)(1) of the Code.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws), all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code and ERISA, a favorable determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and for which no event has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax exemption exists under Section 511 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i4975(c)(2) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g4975(d) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(j) Neither None of the Welfare Plans is funded through a trust or similar arrangement.
(k) Except for health care continuation-coverage requirements pursuant Title VI of ERISA, no Welfare Plan provides post-retirement medical, life insurance or other benefits promised, provided or otherwise due now or in the future to current, former or retired employees of the Company.
(l) All Welfare Plans of the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” that are subject to Section 409A 4980B(f) of the Code and Sections 601 through 607 of ERISA comply with and have been administered in compliance with the health care continuation-coverage requirements for tax-favored status under Section 4980B(f) of the Code (formerly Section 162(k) of the Code), Sections 601 through 607 of ERISA, except where a failure to comply, singly or in the aggregate, would not have a Material Adverse Effect.
(m) The Company has (i) filed or caused to be filed all returns and reports on Plans in which employees of the Company participate that they are required to file and (ii) paid or made adequate provision for all fees, interest, penalties, assessments or deficiencies that have become due pursuant to those returns or reports or pursuant to any assessment or adjustment that has been made relating to those returns or reports, except where a failure to file or pay, singly or in the aggregate, would not have a Material Adverse Effect. All other fees, interest, penalties and assessments that are payable by or for the Company have been timely reported, fully paid and discharged. There are no unpaid fees, penalties, interest or assessments due from the Company or from any other person that are or could become a lien on any asset of the Company or could otherwise adversely affect the businesses or assets of the Company.
Appears in 1 contract
Samples: Merger Agreement (DTVN Holdings Inc)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “The employee pension benefit plan,” as defined in plans, within the meaning of Section 3(33(2) of ERISA, each employmentmaintained by UJB and its susidiaries on the date hereof (individually a "UJB Plan" and collectively the "UJB Plans"), severancein their present form, change comply in control all material respects with all applicable requirements under ERISA and the Code. Each UJB Plan and the trust created thereunder is qualified and exempt under Sections 401(a) and 501(a) of the Code, and UJB or similar contractthe subsidiary whose employees are covered by such UJB Plan has received from the IRS a determination letter to that effect. No event has occurred and to the knowledge of UJB there has been no omission or failure to act which would adversely affect such qualification or exemption. Each UJB Plan has been administered and communicated to the participants and beneficiaries in all material respects in accordance with its terms and ERISA. No employee of UJB or any subsidiary whose employees are covered by a UJB Plan has engaged in any action or, planto the knowledge of UJB, arrangement has failed to act in such manner that, as a result of such action or policy and each other plan failure, a participant or arrangement providing for beneficiary or a nonparticipating employee has been denied benefits properly due or to become due under such UJB Plan or has been misled as to his or
(b) All bonus, deferred compensation, profit-sharing, retirement, pension, stock option or other stock-related rights or other forms of incentive or deferred compensationoption, insurance (including any self-insured arrangements), health or medical benefits, disability or sick leave benefits, post-employment or retirement benefits stock award and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee or Former Employee of the Company or any ERISA Affiliate. Copies of such stock purchase plans and arrangements (andall other employee benefit plans, if applicableincluding medical, related trust major medical, disability, life insurance or funding agreements dental plans covering employees generally maintained by UJB or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee Plans.”
(b) None of the Company, any of its ERISA Affiliates and any predecessor thereof sponsorssubsidiaries other than UJB Plans (collectively "UJB Benefit Plans") comply in all material respects with all applicable requirements imposed by the Securities Act, maintains or contributes tothe Exchange Act, or has in the past sponsoredERISA, maintained or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan.
(c) None of the Company, any ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to , and all Employees Plans:
(i) all such applicable rules and regulations thereunder. The UJB Benefit Plans comply and have been administered and communicated to the participants and beneficiaries in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code their terms and ERISA, and no employee of UJB or any of its subsidiaries has engaged in any action or, to the knowledge of UJB, has failed to act in such manner that, as a favorable result of such action or failure, a participant or beneficiary or a nonparticipating employee has been denied benefits properly due or to become due under the UJB Benefit Plans or has been misled as to their rights under the UJB Benefit Plans. There are no pending or threatened claims (other than routine claims for benefits) against the UJB Benefit Plans which would subject UJB or any of its subsidiaries to a material liability. Any trust which is intended to be tax-exempt has received a determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) that effect and no event has occurred that will which would adversely affect such exemption. All reports, filings, returns and disclosures required to be made to the participants and beneficiaries, other employees of UJB or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in subsidiaries, the SEC, the IRS, the U.S. Department of Labor and any prohibited transaction; and
(iv) there other governmental agency pursuant to the Code, ERISA, or other applicable statute or regulation, if any, have been no acts made in a timely manner and all such reports, filings, returns and disclosures were true and correct in all material respects. No material liability has been, or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered is likely to be, in fact “independent contractors” and are not “employees” incurred on account of delinquent or “common law employees” for tax, benefits, wage, labor incomplete compliance or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights failure to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Coderequirements.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Except as set forth in Section 3.16(a) to the Company Disclosure Schedule 5.14(ato be furnished by the Company to Acquiror within fifteen (15) contains days after the date of this Merger Agreement, neither the Company nor any Subsidiary (i) maintains or has during the past six (6) years maintained any Plan or Other Arrangement, (ii) is or has during the past six (6) years been a correct and complete list identifying each material “employee benefit plan,” party to any Plan or Other Arrangement or (iii) has obligations under any Plan (as defined in Section 3(3Article X) of ERISA, each employment, severance, change or Other Arrangement (as defined in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance (including any self-insured arrangementsArticle X), health or medical benefits, disability or sick leave benefits, post-employment or retirement benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee Plans.”
(b) None The Company will furnish to Acquiror within fifteen (15) days after the date of this Merger Agreement true and complete copies of each of the Company, any following Documents: (i) the Documents setting forth the current terms of its ERISA Affiliates each Plan; (ii) all current related trust Agreements or annuity Agreements (and any predecessor thereof sponsorsother current funding Document) for each Plan; (iii) for the three most recent plan years, maintains or contributes to, or has all annual reports (Form 5500 series) on each Plan that have been filed with any Governmental Entity; (iv) the current summary plan description and subsequent summaries of material modifications for each Title I Plan (as defined in Article X); (v) all DOL (as defined in Article X) opinions on any Plan; (vi) all correspondence with the PBGC (as defined in Article X) on any Plan exchanged during the past sponsoredthree (3) years; (vii) all IRS (as defined in Article X) rulings, maintained opinions or contributed totechnical advice relating to any Plan and the current IRS determination letter issued with respect to each Qualified Plan; and (viii) all current Agreements with service providers or fiduciaries for providing services on behalf of any Plan. For each Other Arrangement, the Company will furnish to Acquiror within fifteen (15) days after the date of this Merger Agreement true and complete copies of each policy, Agreement or other Document setting forth or explaining the current terms of the Other Arrangement, all related trust agreements or other funding Documents (including, without limitation, insurance contracts, certificates of deposit, money market accounts, etc.), all significant employee communications, all correspondence or other submissions with any Employee Plan subject to Title IV Governmental Entity exchanged during the past three (3) years, and all current Agreements with service providers or fiduciaries for providing services on behalf of ERISA or any defined benefit planOther Arrangement.
(c) None of the Company, any ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any No Plan is a Multiemployer Plan, Plan (as defined in Section 3(37) of ERISA (a “Multiemployer Plan”Article X).
(d) No Plan is an ESOP (as defined in Article X).
(e) The funding method used under each Minimum- Funding Plan (as defined in Article X) does not violate the funding requirements in Title I, Subtitle B, Part 3, of ERISA (as defined in Article X). For each Defined Benefit Plan (as defined in Article X), the Company has furnished to Acquiror a true and complete copy of the actuarial valuation reports issued by the actuaries of that Defined Benefit Plan for the three (3) most recent plan years, setting forth: (i) the actuarial present value (based upon the same actuarial assumptions as were used for that period for funding purposes) of all vested and nonvested accrued benefits under that Defined Benefit Plan; (ii) the actuarial present value (based upon the same actuarial assumptions, other than turnover assumptions, as were used for that period for funding purposes) of vested benefits under that Defined Benefit Plan; (iii) the net fair market value of that Defined Benefit Plan's Assets; and (iv) a detailed description of the funding method used under that Defined Benefit Plan.
(f) No "accumulated funding deficiency" as defined in Section 302(a)(2) of ERISA or Section 412 of the Code, whether or not waived, and no "unfunded current liability" as determined under Section 412(l) of the Code exists with respect to any Minimum-Funding Plan. No security is required under Section 401(a)(29) of the Code as to any Minimum-Funding Plan. Section 3.16(f) of the Company Disclosure Schedule, to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, will set forth all unpaid obligations and liabilities of the Company and the Subsidiaries to provide contributions currently due with respect to any Minimum- Funding Plan.
(g) Section 3.16(g) of the Disclosure Schedule, to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, will set forth the contributions that (i) the Company or any Subsidiary has promised or is otherwise obligated to make under each Individual Account Plan that is a Statutory-Waiver Plan (as defined in Article X) and (ii) are due and unpaid as of the date of this Merger Agreement.
(h) The Company and the Subsidiaries have made all contributions and other payments required by and due under the terms of each Plan and Other Arrangement and have taken no action during the past three (3) years (other than actions required by Law) relating to any Plan or Other Arrangement that will increase Acquiror's, the Surviving Corporation's, the Company's or any Subsidiary's obligation under any Plan or Other Arrangement.
(i) Section 3.16(i) of the Company Disclosure Schedule, to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, will set forth a list of all Qualified Plans (as defined in Article X). All Qualified Plans and any related trust Agreements or annuity Agreements (or any other funding Document) comply and have complied with ERISA, the Code (including, without limitation, the requirements for Tax qualification described in Section 401 thereof), and all other Laws, except where the failure so to comply would not have a Company Material Adverse Effect. The trusts established under such Plans are exempt from federal income taxes under Section 501(a) of the Code. The Company and the Subsidiaries have received determination letters issued by the IRS with respect to each Qualified Plan, and the Company will furnish to Acquiror within fifteen (15) days after the date of this Merger Agreement true and complete copies of the most recent determination letter for each Qualified Plan. All statements made by or on behalf of the Company or any Subsidiary to the IRS in connection with applications for such determination letters with respect to each Qualified Plan were true and complete when made and continue to be true and complete. To the knowledge of the Company and the Subsidiaries, nothing has occurred since the date of the most recent applicable determination letter that would adversely affect the tax-qualified status of any Qualified Plan.
(j) To their knowledge, the Company and the Subsidiaries have complied in all material respects with all applicable provisions of the Code, ERISA, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Securities Act, the Exchange Act (as defined in Article X), and all other Laws pertaining to the Plans, Other Arrangements and other employee or employment related benefits, and all premiums and assessments relating to all Plans or Other Arrangements. Neither the Company nor any Subsidiary has any liability for any delinquent contributions within the meaning of Section 515 of ERISA Affiliate sponsors (including, without limitation, related attorneys' fees, costs, liquidated damages and interest) or for any Employee Plansarrearages of wages. Neither the Company nor any Subsidiary has any pending unfair labor practice charges, contract grievances under any collective bargaining agreement, other administrative charges, claims, grievances or lawsuits before any court, arbiter or Governmental Entity arising under any Law governing any Plan, and to the knowledge of the Company and the Subsidiaries there exist no facts that could give rise to such a claim.
(ek) There To their knowledge, none of the Company or any Subsidiary or any of the Plans has engaged in violation of Section 406(a) or 406(b) of ERISA for which no exemption exists under Section 408 of ERISA or any "prohibited transactions" (as such term is defined in Section 4975(c)(1) of the Code), for which no exemption exists under Section 4975(c)(2) or 4975(d) of the Code. Neither the Company nor any Subsidiary has requested a prohibited transaction exemption with respect to any Plan.
(l) The Company and the Subsidiaries have paid all premiums (and interest charges and penalties for late payment, if applicable) due to the PBGC for each Defined Benefit Plan. The Company has reflected (or shall reflect) in each of the Financial Statements the current value of such premium obligation that is accrued and unsatisfied as of the date of each such Financial Statement. Section 3.16(l) of the Company Disclosure Schedule, to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, will set forth the amount of all such unpaid premium obligations (including, without limitation, proportionate partial accruals for the current year). Other than being required to make and making premium payments when due, no liability to the PBGC has been incurred by the Company or by any Common Control Entity (as defined in Article X) on account of Title IV of ERISA. During the past three years, no filing has been made by, or required of, the Company or any Common Control Entity with the PBGC, the PBGC has not started any proceeding to terminate any Defined Benefit Plan that was or is maintained or wholly or partially funded by the Company or any Common Control Entity, and to the knowledge of the Company and the Subsidiaries no facts exist that would permit the PBGC to begin such a proceeding. Neither the Company nor any Common Control Entity has, or will have as a result of the transactions contemplated hereby, (i) withdrawn as a substantial employer so as to become subject to Section 4063 of ERISA; or (ii) ceased making contributions to any Pension Plan that is subject to Section 4064(a) of ERISA to which the Company or any Common Control Entity made contributions during the past five years.
(m) Section 3.16(m) of the Company Disclosure Schedule, to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, will identify any terminated Plan that covered any current or projected Liability former employees of the Company or any Subsidiary, and any other Plan that has been terminated, during the past three (3) years. The Company has furnished to Acquiror true and complete copies of all filings with any Governmental Entity, employee communications, board minutes and all other Documents relating to each such Plan termination.
(n) Except as set forth in respect Section 3.16(n) of post-employment the Company Disclosure Schedule to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, no Plan or post-retirement health Other Arrangement, individually or medical collectively, provides for any payment by the Company or life insurance benefits for retired, former any Subsidiary to any employee or current Employees, except as required to avoid excise tax independent contractor that is not deductible under Section 4980B 162(a)(1) or 404 of the Code or that is an "excess parachute payment" pursuant to Section 280G of the Code.
(fo) As No Plan has, within the past three (3) years, experienced a "reportable event" (as such term is defined in Section 4043(b) of ERISA) that is not subject to all Employees Plans:an administrative or statutory waiver from the reporting requirement.
(ip) all No Plan is a "qualified foreign plan" (as such Plans comply term is defined in Section 404A(e) of the Code), and no Plan is subject to the Laws of any jurisdiction other than the United States of America or one of its political subdivisions.
(q) The Company and the Subsidiaries have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
furnished to Acquiror true and complete copies of each Form 5330 (iiReturn of Excise Taxes Related to Employee Benefit Plans) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously maintained by that the Company or any ERISA Affiliate comply Subsidiary filed on any Plan during the past three (3) years. To their knowledge, the Company and complied in form and in operation with all applicable requirements the Subsidiaries have no liability for Taxes required to be reported on Form 5330.
(r) Section 3.16(r) of the Code and ERISACompany Disclosure Schedule, a favorable determination letter has been received from to be furnished by the IRS with respect Company to each such Plan Acquiror within fifteen (15) days after the date of this Merger Agreement, will list all funded Welfare Plans (as defined in Article X) that provide benefits to current or the sponsor former employees of the Company or any Subsidiary, or to their beneficiaries. The funding under each Welfare Plan is entitled to rely on a favorable opinion letter issued to does not exceed and has not exceeded the Plan’s prototype sponsor by the IRSlimitations under Sections 419A(b) and no event has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 419A(c) of the Code;
(iii) there . To their knowledge, the Company and the Subsidiaries are no non-exempt “prohibited transactions” not subject to taxation on the income of any Welfare Plan's welfare benefit fund (as described such term is defined in Section 406 of ERISA or Section 4975 419(e) of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(ivunder Section 419A(g) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(js) Neither Section 3.16(s) of the Company nor Disclosure Schedule, to be furnished by the Company to Acquiror within fifteen (15) days after the date of this Merger Agreement, will (i) identify all post-retirement medical, life insurance or other benefits promised, provided or otherwise due now or in the future to current, former or retired employees of the Company or any ERISA Affiliate maintains Subsidiary, (ii) identify the method of funding (including, without limitation, any “nonqualified deferred compensation plan” individual accounting) for all such benefits, (iii) disclose the funded status of the Plans providing or promising such benefits and (iv) set forth the method of accounting for such benefits to any key employees (as defined in Section 416(i) of the Code) of the Company or any Subsidiary.
(t) All Welfare Plans and the related trusts that are subject to Section 409A 4980B(f) of the Code and Sections 601 through 607 of ERISA comply in all material respects with and have been administered in compliance with the health care continuation-coverage requirements for tax-favored status under Section 4980B(f) of the Code (formerly Section 162(k) of the Code), Sections 601 through 607 of ERISA, and all proposed or final regulations under Section 162 of the Code explaining those requirements.
(u) The Company and the Subsidiaries have (i) filed or caused to be filed all returns and reports on the Plans that they are required to file and (ii) paid or made adequate provision for all fees, interest, penalties, assessments or deficiencies that have become due pursuant to those returns or reports or pursuant to any assessment or adjustment that has been made relating to those returns or reports. All other fees, interest, penalties and assessments that are due and payable by or for the Company or any Subsidiary with respect to any Plan have been timely reported, fully paid and discharged. There are no unpaid fees, penalties, interest or assessments due from the Company or any Subsidiary or from any other Person that are or could become an Encumbrance on any Asset of the Company or any Subsidiary or could otherwise have a Company Material Adverse Effect. The Company and the Subsidiaries have collected or withheld all amounts that are required to be collected or withheld by them to discharge their obligations with respect to each Plan, and all of those amounts have been paid to the appropriate Governmental Entity or set aside in appropriate accounts for future payment when due.
Appears in 1 contract
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) All accrued obligations of ERISAVideo Galaxy applicable to its employees, each employmentwhether arising by operation of law, severance, change in control or similar by contract, planby past custom or otherwise, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option payments by Video Galaxy to trusts or other stock-related rights funds or other forms of incentive or deferred compensationto any governmental agency, insurance (including any self-insured arrangements), health or medical with respect to unemployment compensation benefits, disability or sick leave benefits, post-employment or retirement social security benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee other benefits for its employees with respect to the employment of said employees through the date hereof have been paid or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (andadequate accruals therefor have been made on, if as applicable, related trust or funding agreements or insurance policies) the Books and all amendments thereto Records of Video Galaxy and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee PlansVideo Galaxy Financial Statements.”
(b) None Except as disclosed on Schedule 3.22, as of the Company, date hereof:
(1) Neither Video Galaxy nor any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes has any obligations to contribute to, or has in the past sponsored, maintained effect or contributed tohas committed to adopt, any Employee Pension Plan subject to Title IV of ERISA or any defined benefit plan.Welfare Plan;
(c2) None of the Company, any Each ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered Plan conforms in all material respects in form and in operation with to all applicable Lawslaws and orders, all required returns (including without limitation information ERISA and the applicable provisions of the Code. All notices, reports, returns) have been prepared in accordance with all applicable Laws , applications and disclosures have been timely filed made which are required to be made to the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, any participants in accordance the ERISA Plans, any trustee, or any insurer with applicable Laws, and neither respect to the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliancePlans;
(ii3) Video Galaxy and its ERISA Affiliates have made or provided for (with fully-funded reserves) all Employee contributions heretofore required to have been made under all of the ERISA Plans, and will, by the Closing, have made or provided for (with fully-funded reserves) all contributions required to be made on or before the Closing under all such plans;
(4) No ERISA Plan nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction which may subject any of such ERISA Plans, any such trust, or any party dealing with such ERISA Plans intended or any such trust, to qualify the Tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to comply with a civil penalty imposed by Section 502 of ERISA;
(5) There are no material actions, claims or lawsuits which have been asserted or instituted against the assets of any of the trusts under the ERISA Plans, and no basis for such action, claim or lawsuit exists, and no such action, claim or lawsuit has been threatened;
(6) Video Galaxy has not agreed to indemnify any other party for any liabilities or expenses which have been or may in the future be incurred by or asserted against such other party in respect of any ERISA Plan;
(7) Each Pension Plan constituting one of the ERISA Plans is qualified under Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements Code, each of the Code and ERISA, a favorable determination letter has been received from the IRS trusts maintained with respect to each thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred which would cause the loss of such Plan (qualification or exemption or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification imposition of any such Plan or to a tax penalty under Section 511 4971 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 8) The assets of ERISA or Section 4975 each Pension Plan constituting one of the CodeERISA Plans (including Pension Plans maintained by an ERISA Affiliate) are sufficient to pay all liabilities of the plan, including, without limitation, all liabilities to pay benefits to any past or present participant or beneficiary in such plan, any expense incurred in administering the plan, and any liabilities for Taxes which may be imposed on the plan or on any trust maintained in connection with the plan;
(9) The value of all accrued benefits under each Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained by an ERISA Affiliate) which is a "defined benefit plan" within the meaning of Section 3(35) of ERISA, including each "multi-employer plan" within the meaning of Section 3(37) of ERISA, does not exceed, on an accrual basis, the aggregate value of the assets of each such plan;
(10) There has been no "reportable event," within the meaning of Section 4043(b) of ERISA, with respect to any Employee Pension Plan and neither which constitutes one of the Company ERISA Plans since the effective date of Section 4043(b) of ERISA;
(11) The transaction contemplated by this Agreement will not result in a reportable event, within the meaning of ERISA Section 4043, other than a reportable event with respect to which (i) the ERISA Section 4043 reportable event notice requirement has been waived or (ii) the Pension Benefit Guaranty Corporation will not apply a penalty for failure to satisfy the reportable event notice requirement;
(12) Neither Video Galaxy nor any of its ERISA Affiliates has any liability to the Pension Benefit Guaranty Corporation pursuant to Title IV of ERISA in respect of any Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained, or formerly maintained, by an ERISA Affiliate);
(13) Neither Video Galaxy nor any of its ERISA Affiliates maintains or has any obligation to contribute to any multi-employer plan;
(14) Neither Video Galaxy nor any of its ERISA Affiliates has terminated a defined benefit plan or multi-employer plan or suffered or otherwise engaged caused a "complete withdrawal" or "partial withdrawal" as such terms are respectively defined in Sections 4203 and 4205 of ERISA from any prohibited transactionmulti- employer plan. Since April 1, 1979, neither Video Galaxy nor any of its ERISA Affiliates has complied with Section 4204 of ERISA in order to avoid any such "complete withdrawal" or "partial withdrawal";
(15) The transaction contemplated by this Agreement will not result in a Video Galaxy liability for severance or termination pay or result in increased employee benefits becoming payable to any employees of Video Galaxy;
(16) Neither Video Galaxy nor any of its ERISA Affiliates has any unpaid liability in respect of any employee for any contributions and/or premiums due under any Welfare Plan constituting one of the ERISA Plans;
(17) Neither Video Galaxy nor its ERISA Affiliates has any liability as to any benefits to which any employee may be entitled under any Welfare Plan constituting one of the ERISA Plans, whether for benefits due or claims filed; and
(iv18) there have been no acts Video Galaxy does not maintain any health or omissions by the Company life insurance plan that provides for continuing benefits or coverage for any participant or any ERISA Affiliate that have given rise to spouse, dependent or could reasonably beneficiary under such plan after termination of employment, other than as may be expected to give rise to material fines, penalties, taxes or related charges required under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 Section 4980B of the Code for which and regulations thereunder ("COBRA"). Video Galaxy is in compliance with the Company or any ERISA Affiliate may be liable COBRA notice and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed continuation coverage requirements with respect to Plans maintained by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISAVideo Galaxy.
(gc) All individuals considered by True, correct and complete copies of the Company following documents, with respect to each of the ERISA Plans, have been delivered to VCI:
(1) Each ERISA Plan document, employment contract, policy, procedure or other governing instrument relating to an ERISA Plan, including all amendments, supplements, collective bargaining agreements, letters, memoranda, understandings and any other document reasonably necessary to reflect the terms and conditions of each ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purposePlan.
(h2) No Employee The most recent summary plan description of each ERISA Plan for which a summary plan description is entitled required under ERISA, and summaries of material modification thereto.
(3) All instruments under which the assets of any ERISA Plan are held or managed and benefits provided, including, but not limited to, nor shall any Employee accrue insurance contracts, trust agreements, custodial contracts and investment management agreements.
(4) The two most recent Forms 5500, 5500-C or receive5500-R for each ERISA Plan for which such filing is required, additional benefitswith all attachments and schedules thereto.
(5) The two most recent annual financial statements for each ERISA Plan, services, accelerated rights if not included with such Form 5500 (5500-C or 5500-R).
(6) The most recent actuarial valuation report for each ERISA Plan (as applicable).
(7) With respect to payment of benefits or accelerated vesting, whether pursuant to any Employee each ERISA Plan or otherwise, including the right to receive any parachute payment as defined in that has received a determination letter under Section 280G 401(a) of the Code, or become entitled to severanceand any voluntary employee benefit association trust that has received a determination letter under Section 501(c) of the Code, termination allowance or other similar payments as a result the most recent Internal Revenue Service determination letter (including any letter concerning the tax-exempt status of this Agreement any trust under Section 501(a) of the Code), the application submitted when requesting such determination letter, and the transactions contemplated hereunderany subsequently filed determination letter request.
(id) All options that have been granted Pension Plans shall be terminated by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject Video Galaxy prior to the provisions of Section 409A of the CodeEffective Time.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Video City Inc)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Except as disclosed on Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) 4.22, all accrued obligations of ERISAPrism applicable to its employees, each employmentwhether arising by operation of law, severance, change in control or similar by contract, planby past custom or otherwise, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option payments by Prism to trusts or other stock-related rights funds or other forms of incentive or deferred compensationto any governmental agency, insurance (including any self-insured arrangements), health or medical with respect to unemployment compensation benefits, disability or sick leave benefits, post-employment or retirement social security benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee other benefits for its employees with respect to the employment of said employees through the date hereof have been paid or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (andadequate accruals therefor have been made on, if as applicable, related trust or funding agreements or insurance policies) the Books and all amendments thereto Records of Prism and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee PlansPrism Financial Statements.”
(b) None Except as disclosed on Schedule 4.22, as of the Company, date hereof:
(1) Neither Prism nor any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes has any obligations to contribute to, or has in the past sponsored, maintained effect or contributed tohas committed to adopt, any Employee Pension Plan subject to Title IV of ERISA or any defined benefit plan.Welfare Plan;
(c2) None of the Company, any Each ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered Plan conforms in all material respects in form and in operation with to all applicable Lawslaws and orders, all required returns (including without limitation information ERISA and the applicable provisions of the Code. All notices, reports, returns) have been prepared in accordance with all applicable Laws , applications and disclosures have been timely filed made which are required to be made to the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, any participants in accordance the ERISA Plans, any trustee, or any insurer with applicable Laws, and neither respect to the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliancePlans;
(ii3) Prism and its ERISA Affiliates have made or provided for (with fully-funded reserves) all Employee contributions heretofore required to have been made under all of the ERISA Plans, and will, by the Closing Date, have made or provided for (with fully-funded reserves) all contributions required to be made on or before the Closing Date under all such plans;
(4) No ERISA Plan nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction which may subject any of such ERISA Plans, any such trust, or any party dealing with such ERISA Plans intended or any such trust, to qualify the Tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to comply with a civil penalty imposed by Section 502 of ERISA;
(5) There are no material actions, claims or lawsuits which have been asserted or instituted against the assets of any of the trusts under the ERISA Plans, and no basis for such action, claim or lawsuit exists, and no such action, claim or lawsuit has been threatened;
(6) Prism has not agreed to indemnify any other party for any liabilities or expenses which have been or may in the future be incurred by or asserted against such other party in respect of any ERISA Plan;
(7) Each Pension Plan constituting one of the ERISA Plans is qualified under Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements Code, each of the Code and ERISA, a favorable determination letter has been received from the IRS trusts maintained with respect to each thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred which would cause the loss of such Plan (qualification or exemption or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification imposition of any such Plan or to a tax penalty under Section 511 4971 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 8) The assets of ERISA or Section 4975 each Pension Plan constituting one of the CodeERISA Plans (including Pension Plans maintained by an ERISA Affiliate) are sufficient to pay all liabilities of the plan, including, without limitation, all liabilities to pay benefits to any past or present participant or beneficiary in such plan, any expense incurred in administering the plan, and any liabilities for Taxes which may be imposed on the plan or on any trust maintained in connection with the plan;
(9) The value of all accrued benefits under each Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained by an ERISA Affiliate) which is a "defined benefit plan" within the meaning of Section 3(35) of ERISA, including each "multi-employer plan" within the meaning of Section 3(37) of ERISA, does not exceed, on an accrual basis, the aggregate value of the assets of each such plan;
(10) There has been no "reportable event," within the meaning of Section 4043(b) of ERISA, with respect to any Employee Pension Plan and neither which constitutes one of the Company ERISA Plans since the effective date of Section 4043(b) of ERISA;
(11) The transaction contemplated by this Agreement will not result in a reportable event, within the meaning of ERISA Section 4043, other than a reportable event with respect to which (i) the ERISA Section 4043 reportable event notice requirement has been waived or (ii) the Pension Benefit Guaranty Corporation will not apply a penalty for failure to satisfy the reportable event notice requirement;
(12) Neither Prism nor any of its ERISA Affiliates has any liability to the Pension Benefit Guaranty Corporation pursuant to Title IV of ERISA in respect of any Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained, or formerly maintained, by an ERISA Affiliate);
(13) Neither Prism nor any of its ERISA Affiliates maintains or has any obligation to contribute to any multi-employer plan;
(14) Neither Prism nor any of its ERISA Affiliates has terminated a defined benefit plan or multi-employer plan or suffered or otherwise engaged caused a "complete withdrawal" or "partial withdrawal" as such terms are respectively defined in Sections 4203 and 4205 of ERISA from any prohibited transactionmulti- employer plan. Since April 1, 1979, neither Prism nor any of its ERISA Affiliates has complied with Section 4204 of ERISA in order to avoid any such "complete withdrawal" or "partial withdrawal;"
(15) The transaction contemplated by this Agreement will not result in a Prism liability for severance or termination pay or result in increased employee benefits becoming payable to any employees of Prism;
(16) Neither Prism nor any of its ERISA Affiliates has any unpaid liability in respect of any employee for any contributions and/ or premiums due under any Welfare Plan constituting one of the ERISA Plans;
(17) Neither Prism nor its ERISA Affiliates has any liability as to any benefits to which any employee may be entitled under any Welfare Plan constituting one of the ERISA Plans, whether for benefits due or claims filed; and
(iv18) there have been no acts Prism does not maintain any health or omissions by the Company life insurance plan that provides for continuing benefits or coverage for any participant or any ERISA Affiliate that have given rise to spouse, dependent or could reasonably beneficiary under such plan after termination of employment, other than as may be expected to give rise to material fines, penalties, taxes or related charges required under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 Section 4980B of the Code for which and regulations thereunder ("COBRA"). Prism is in compliance with the Company or any ERISA Affiliate may be liable COBRA notice and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed continuation coverage requirements with respect to Plans maintained by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISAPrism.
(gc) All individuals considered by True, correct and complete copies of the Company following documents, with respect to the each of the ERISA Plans, have been delivered to VCI:
(1) Each ERISA Plan document, employment contract, policy, procedure or other governing instrument relating to a ERISA Plan, including all amendments, supplements, collective bargaining agreements, letters, memoranda, understandings and any other document reasonably necessary to reflect the terms and conditions of each ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purposePlan.
(h2) No Employee The most recent summary plan description of each ERISA Plan for which a summary plan description is entitled required under ERISA, and summaries of material modification thereto.
(3) All instruments under which the assets of any ERISA Plan are held or managed and benefits provided, including, but not limited to, nor shall any Employee accrue insurance contracts, trust agreements, custodial contracts and investment management agreements.
(4) The two most recent Forms 5500, 5500-C or receive5500- R for each ERISA Plan for which such filing is required, additional benefitswith all attachments and schedules thereto.
(5) The two most recent annual financial statements for each ERISA Plan, services, accelerated rights if not included with such Form 5500 (5500-C or 5500-R).
(6) The most recent actuarial valuation report for each ERISA Plan (as applicable).
(7) With respect to payment of benefits or accelerated vesting, whether pursuant to any Employee each ERISA Plan or otherwise, including the right to receive any parachute payment as defined in that has received a determination letter under Section 280G 401(a) of the Code, or become entitled to severance, termination allowance or other similar payments as and any voluntary employee benefit association trust that has received a result of this Agreement and the transactions contemplated hereunder.
(idetermination letter under Section 501(c) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
, the most recent Internal Revenue Service determination letter (jincluding any letter concerning the tax-exempt status of any trust under Section 501(a) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code), the application submitted when requesting such determination letter, and any subsequently filed determination letter request.
Appears in 1 contract
Samples: Merger Agreement (Video City Inc)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) All accrued obligations of ERISAVUN applicable to its employees, each employmentwhether arising by operation of law, severance, change in control or similar by contract, planby past custom or otherwise, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option payments by VUN to trusts or other stock-related rights funds or other forms of incentive or deferred compensationto any governmental agency, insurance (including any self-insured arrangements), health or medical with respect to unemployment compensation benefits, disability or sick leave benefits, post-employment or retirement social security benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee other benefits for its employees with respect to the employment of said employees through the date hereof have been paid or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (andadequate accruals therefor have been made on, if as applicable, related trust or funding agreements or insurance policies) the Books and all amendments thereto Records of VUN and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee PlansVUN Financial Statements.”
(b) None Except as disclosed on Schedule 3.22, as of the Company, any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan.
(c) None of the Company, any ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to all Employees Plansdate hereof:
(i1) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code and ERISA, a favorable determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company Neither VUN nor any of its ERISA Affiliates maintains or has otherwise any obligations to contribute to, or has in effect or has committed to adopt, any Pension Plan or any Welfare Plan;
(2) Each ERISA Plan conforms in all material respects to all applicable laws and orders, including ERISA and the applicable provisions of the Code. All notices, reports, returns, applications and disclosures have been timely made which are required to be made to the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, any participants in the ERISA Plans, any trustee, or any insurer with respect to the ERISA Plans;
(3) VUN and its ERISA Affiliates have made or provided for (with fully-funded reserves) all contributions heretofore required to have been made under all of the ERISA Plans, and will, by the Closing, have made or provided for (with fully-funded reserves) all contributions required to be made on or before the Closing under all such plans;
(4) No ERISA Plan nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction which may subject any prohibited transaction; and
(iv) there have been no acts or omissions by the Company of such ERISA Plans, any such trust, or any party dealing with such ERISA Affiliate that have given rise Plans or any such trust, to the Tax or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 penalty on prohibited transactions imposed by Section 4975 of the Code for or to a civil penalty imposed by Section 502 of ERISA;
(5) There are no material actions, claims or lawsuits which have been asserted or instituted against the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor assets of any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g) All individuals considered by the Company and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” trusts under the Code comply with all applicable requirements necessary to qualify for such tax statusERISA Plans, and no option is subject to the provisions of Section 409A of the Code.basis for such action, claim or lawsuit exists, and no such action, claim or lawsuit has been threatened;
(j6) Neither the Company nor VUN has not agreed to indemnify any ERISA Affiliate maintains other party for any “nonqualified deferred compensation plan” subject to Section 409A of the Code.liabilities or expenses which have been or may in
Appears in 1 contract
Samples: Merger Agreement (Video City Inc)
Pension and Benefit Plans. The Company Canyon hereby represents and warrants to Acquiror Atna that:
(a) Schedule 5.14(a4.15(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance, change in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance (including any self-insured arrangements), health or medical benefits, disability or sick leave benefits, post-employment or retirement benefits and benefits, fringe benefits, or other employee benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company Canyon or any ERISA Affiliate and covers any Employee or Former Employee of the Company Canyon or any ERISA Affiliate. Copies of such plans and arrangements (or, in the case of any unwritten plans or arrangements, descriptions thereof), including all amendments thereto and written interpretations thereof (such as summary plan descriptions), and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof policies have been furnished to AcquirorAtna. Such plans are referred to collectively herein as the “Employee Plans.”
(b) None of the CompanyCanyon, any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan.
(c) None of the CompanyCanyon, any ERISA Affiliate of the Company Canyon and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company Canyon nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”).
(f) As to all Employees Plans:
(i) all such Employee Plans materially comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company Canyon nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans intended to qualify to comply with Section 401 of the Code maintained or previously maintained by the Company Canyon or any ERISA Affiliate materially comply and materially complied in form and in operation with all applicable requirements of the Code and ERISA, Canyon has determined that no partial termination has occurred with regard to any such Plan, or if a partial termination has occurred, all affected participants in such Plan have been fully vested, a favorable determination letter has been received from the IRS with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) to the Company’s Knowledge, there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company Canyon nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) to the Company’s Knowledge, there have been no acts or omissions by the Company Canyon or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company Canyon or any ERISA Affiliate may be liable and neither the Company Canyon nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company Canyon or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(g) All individuals considered by the Company Canyon and any ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company Canyon to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(j) Neither the Company Canyon nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a3.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance, change in control severance or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance (including any self-insured arrangements), health or medical benefits, disability or sick leave benefits, and post-employment or retirement benefits and fringe benefits (each, an “Employee Plan”) which is sponsored, maintained, administered or contributed to by the Seller or Company or any ERISA Affiliate and covers any Employee or Former Employee of the Company or any ERISA AffiliateEmployee. Copies of such plans and arrangements (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to AcquirorPurchaser. Such plans are referred to collectively herein as the “Employee Plans.”” Schedule 3.14(a) separately identifies each Employee Plan sponsored, maintained, administered or contributed to by Company.
(b) None of the CompanySeller, Company or any of its ERISA Affiliates and or any predecessor thereof sponsors, maintains maintains, administers or contributes to, or has in the past sponsored, maintained maintained, administered or contributed to, any Employee Plan subject to Title IV of ERISA or any defined benefit plan.
(c) None of the CompanySeller, Company or any ERISA Affiliate of the Seller or Company and or any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Planmultiemployer plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither Each Employee Plan has been maintained, funded and administered in compliance in all material respects with the Company nor requirements of ERISA, the Code and any ERISA Affiliate sponsors any Employee Plansother applicable Laws, and all payments, premiums, contributions, distributions and reimbursements, for all periods ending prior to the Closing have been made or properly accrued.
(e) There Other than the Employee Liabilities, there is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Each Employee Plans Plan that is intended to qualify to comply with be qualified under Section 401 401(a) of the Code maintained has received a determination letter from the Internal Revenue Service or previously maintained is a prototype plan covered by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements of the Code and ERISA, a sponsor’s favorable determination letter letter, and to Company’s Knowledge, nothing has been received from the IRS occurred with respect to each such Plan (or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any result in loss of their respective directors, officers or employees to liability under ERISAsuch qualification.
(g) All individuals considered Except as set forth on Schedule 3.14(g), the consummation of the transactions contemplated by this Agreement whether alone or in combination with any subsequent event, will not (i) result in the Company and acceleration of vesting, payments or benefits under any ERISA Affiliate Employee Plan, or (ii) result in any payment failing to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purpose.
(h) No Employee is entitled to, nor shall any Employee accrue or receive, additional benefits, services, accelerated rights to payment of benefits or accelerated vesting, whether pursuant to any Employee Plan or otherwise, including the right to receive any parachute payment as defined in deductible under Section 280G of the Code, or become entitled to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereunder.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct Company has delivered to Acquiror prior to the execution of this Merger Agreement true and complete list identifying each material “employee benefit plan,” as defined in Section 3(3copies (or written descriptions, where no written plan exists) (and, where applicable, the most recent actuarial, valuation or annual (Form 5500 with attachments) reports with respect thereto) of ERISAall pension, each employment, severance, change in control or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensationretirement, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, insurance (including any self-insured arrangements)stock option, health employee stock ownership, severance pay, vacation, bonus or medical benefitsother incentive plans, disability or sick leave benefits, post-employment or retirement benefits change in control agreements, medical, vision, dental or other health plans, life insurance plans and other employee benefit plans or fringe benefits (eachbenefit plans, an “Employee Plan”programs, arrangements or Agreements, including, without limitation, all Company Benefit Plans. No Company Benefit Plan is or has been a multiemployer plan within the meaning of Section 4001(a)(3) which is maintained, administered of ERISA or contributed to by the could subject Company or any ERISA Affiliate and covers any Employee Company Subsidiary to liability under Sections 4063 or Former Employee 4064 of ERISA. Company has set forth in the Company Disclosure Letter (i) a list of all of the Company or any ERISA Affiliate. Copies Benefit Plans, (ii) a list of such plans the Company Benefit Plans that are Company Pension Plans, (iii) a list of the Company Benefit Plans that are Company Stock Plans, and arrangements (andiv) a list of the number of shares covered by, if applicableexercise prices for, related trust or funding agreements or insurance policies) and holders of, all amendments thereto stock options granted and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as available for grant under the “Employee Company Stock Plans.”
(b) None From their inception, all Company Benefit Plans have been and are in compliance (in form and in operation) in all material respects with the applicable terms of ERISA and the Company, any of its ERISA Affiliates Code and any predecessor thereof sponsorsother applicable Laws, maintains including the terms of such plans.
(c) All liabilities (contingent or contributes to, otherwise) under any Company Benefit Plan are fully accrued or has reserved against in the past sponsored, maintained or contributed to, any Employee Company Financial Statement in accordance with GAAP. Each Company Pension Plan that is subject to Title IV of ERISA or any defined benefit plan.
(c) None Section 412 of the Company, Code satisfies the minimum funding standards (without regard to any ERISA Affiliate waiver) provided for in Section 412 of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”)Code.
(d) Neither the Company nor any ERISA Affiliate sponsors Company Subsidiary has any Employee Plansobligations for retiree health or other welfare benefits under any Company Benefit Plan or otherwise, and there are no restrictions on the rights of Company or any Company Subsidiary to unilaterally amend or terminate any such Company Benefit Plan at any time without incurring any material liability thereunder.
(e) There is no current or projected Liability in respect Neither the execution and delivery of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B this Merger Agreement nor the consummation of the Codetransactions contemplated hereby will (i) result in any payment (including, without limitation, severance, golden parachute or otherwise) becoming due to any person under any Company Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any such benefits.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered in all material respects in form and in operation with all applicable Laws, all required returns (including without limitation information returns) have been prepared in accordance with all applicable Laws and have been timely filed in accordance with applicable Laws, and neither the Each Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliance;
(ii) all Employee Plans Benefit Plan which is intended to qualify to comply with be qualified under Section 401 401(a) or 401(k) of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply qualified as a voluntary employees' beneficiary association under Sections 501(a) and complied in form and in operation with all applicable requirements 501(c)(9) of the Code and ERISA, has received a favorable determination letter has been received from the IRS with respect that it is so qualified and so exempt, and , to each such Plan (or the sponsor best of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and Company's knowledge, no fact or event has occurred that will could adversely affect such qualified or could reasonably be expected to give rise to disqualification of any such Plan or to a tax under Section 511 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan and neither the Company nor any of its ERISA Affiliates has otherwise engaged in any prohibited transaction; and
(iv) there have been no acts or omissions by the Company or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for which the Company or any ERISA Affiliate may be liable and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISAstatus.
(g) All individuals considered by the Company and each Company Subsidiary have not incurred any ERISA Affiliate to be independent contractors areliability under, and could only be have complied in all respects with, the Worker Adjustment Retraining Notification Act and the regulations promulgated thereunder and do not reasonably considered expect to be, in fact “independent contractors” and are incur any such liability as a result of actions taken or not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purposetaken prior to the consummation of the Merger.
(h) No Employee With respect to each Company Benefit Plan that is entitled toa Multiemployer Plan, (i) neither Company nor any Company Subsidiary has incurred any Withdrawal Liability that has not been satisfied in full; (ii) if Company or any Company Subsidiary were to experience a withdrawal or partial withdrawal from such plan, no material Withdrawal Liability would be incurred; (iii) neither Company nor any Company Subsidiary has received any notification, nor shall has any Employee accrue reason to believe, that any such plan is in reorganization, has been terminated, or receivemay reasonably be expected to be in reorganization or to be terminated, additional benefits, services, accelerated rights to payment of benefits and (iv) neither Company nor any Company Subsidiary is liable or accelerated vesting, whether pursuant to has been advised that it is liable for any Employee Plan funding Taxes under sections 413(b)(6) or otherwise, including the right to receive any parachute payment as defined in Section 280G 4971 of the Code, Code on account of any accumulated funding deficiency of any Multiemployer Plan to which Company or become entitled any Company Subsidiary has contributed or is required to severance, termination allowance or other similar payments as a result of this Agreement and the transactions contemplated hereundercontribute.
(i) All options that have been granted by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject to the provisions of Section 409A of the Code.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Company Subsidiary is now or has ever been a "substantial employer" as defined in Section 409A of the Code.4001(a)(2)
Appears in 1 contract
Samples: Merger Agreement (Titan Corp)
Pension and Benefit Plans. The Company hereby represents and warrants to Acquiror that:
(a) Schedule 5.14(a) contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) All accrued obligations of ERISAVideoland applicable to its employees, each employmentwhether arising by operation of law, severance, change in control or similar by contract, planby past custom or otherwise, arrangement or policy and each other plan or arrangement providing for compensation, profit-sharing, stock option payments by Videoland to trusts or other stock-related rights funds or other forms of incentive or deferred compensationto any governmental agency, insurance (including any self-insured arrangements), health or medical with respect to unemployment compensation benefits, disability or sick leave benefits, post-employment or retirement social security benefits and fringe benefits (each, an “Employee Plan”) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any Employee other benefits for its employees with respect to the employment of said employees through the date hereof have been paid or Former Employee of the Company or any ERISA Affiliate. Copies of such plans and arrangements (andadequate accruals therefor have been made on, if as applicable, related trust or funding agreements or insurance policies) the Books and all amendments thereto Records of Videoland and written interpretations thereof have been furnished to Acquiror. Such plans are referred to collectively herein as the “Employee PlansVideoland Financial Statements.”
(b) None Except as disclosed on Schedule 3.22, as of the Company, date hereof:
(1) Neither Videoland nor any of its ERISA Affiliates and any predecessor thereof sponsors, maintains or contributes has any obligations to contribute to, or has in the past sponsored, maintained effect or contributed tohas committed to adopt, any Employee Pension Plan subject to Title IV of ERISA or any defined benefit plan.Welfare Plan;
(c2) None of the Company, any Each ERISA Affiliate of the Company and any predecessor thereof contributes to, or has in the past contributed to, any Multiemployer Plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”).
(d) Neither the Company nor any ERISA Affiliate sponsors any Employee Plans.
(e) There is no current or projected Liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees, except as required to avoid excise tax under Section 4980B of the Code.
(f) As to all Employees Plans:
(i) all such Plans comply and have been administered Plan conforms in all material respects in form and in operation with to all applicable Lawslaws and orders, all required returns (including without limitation information ERISA and the applicable provisions of the Code. All notices, reports, returns) have been prepared in accordance with all applicable Laws , applications and disclosures have been timely filed made which are required to be made to the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, any participants in accordance the ERISA Plans, any trustee, or any insurer with applicable Laws, and neither respect to the Company nor any ERISA Affiliate has received any outstanding written notice from any Governmental or quasi-Governmental Body questioning or challenging such compliancePlans;
(ii3) Videoland and its ERISA Affiliates have made or provided for (with fully-funded reserves) all Employee contributions heretofore required to have been made under all of the ERISA Plans, and will, by the Closing, have made or provided for (with fully-funded reserves) all contributions required to be made on or before the Closing under all such plans;
(4) No ERISA Plan nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction which may subject any of such ERISA Plans, any such trust, or any party dealing with such ERISA Plans intended or any such trust, to qualify the Tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to comply with a civil penalty imposed by Section 502 of ERISA;
(5) There are no material actions, claims or lawsuits which have been asserted or instituted against the assets of any of the trusts under the ERISA Plans, and no basis for such action, claim or lawsuit exists, and no such action, claim or lawsuit has been threatened;
(6) Videoland has not agreed to indemnify any other party for any liabilities or expenses which have been or may in the future be incurred by or asserted against such other party in respect of any ERISA Plan;
(7) Each Pension Plan constituting one of the ERISA Plans is qualified under Section 401 of the Code maintained or previously maintained by the Company or any ERISA Affiliate comply and complied in form and in operation with all applicable requirements Code, each of the Code and ERISA, a favorable determination letter has been received from the IRS trusts maintained with respect to each thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred which would cause the loss of such Plan (qualification or exemption or the sponsor of the Plan is entitled to rely on a favorable opinion letter issued to the Plan’s prototype sponsor by the IRS) and no event has occurred that will or could reasonably be expected to give rise to disqualification imposition of any such Plan or to a tax penalty under Section 511 4971 of the Code;
(iii) there are no non-exempt “prohibited transactions” (as described in Section 406 8) The assets of ERISA or Section 4975 each Pension Plan constituting one of the CodeERISA Plans (including Pension Plans maintained by an ERISA Affiliate) are sufficient to pay all liabilities of the plan, including, without limitation, all liabilities to pay benefits to any past or present participant or beneficiary in such plan, any expense incurred in administering the plan, and any liabilities for Taxes which may be imposed on the plan or on any trust maintained in connection with the plan;
(9) The value of all accrued benefits under each Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained by an ERISA Affiliate) which is a "defined benefit plan" within the meaning of Section 3(35) of ERISA, including each "multi-employer plan" within the meaning of Section 3(37) of ERISA, does not exceed, on an accrual basis, the aggregate value of the assets of each such plan;
(10) There has been no "reportable event," within the meaning of Section 4043(b) of ERISA, with respect to any Employee Pension Plan and neither which constitutes one of the Company ERISA Plans since the effective date of Section 4043(b) of ERISA;
(11) The transaction contemplated by this Agreement will not result in a reportable event, within the meaning of ERISA Section 4043, other than a reportable event with respect to which (i) the ERISA Section 4043 reportable event notice requirement has been waived or (ii) the Pension Benefit Guaranty Corporation will not apply a penalty for failure to satisfy the reportable event notice requirement;
(12) Neither Videoland nor any of its ERISA Affiliates has any liability to the Pension Benefit Guaranty Corporation pursuant to Title IV of ERISA in respect of any Pension Plan constituting one of the ERISA Plans (including Pension Plans maintained, or formerly maintained, by an ERISA Affiliate);
(13) Neither Videoland nor any of its ERISA Affiliates maintains or has any obligation to contribute to any multi-employer plan;
(14) Neither Videoland nor any of its ERISA Affiliates has terminated a defined benefit plan or multi-employer plan or suffered or otherwise engaged caused a "complete withdrawal" or "partial withdrawal" as such terms are respectively defined in Sections 4203 and 4205 of ERISA from any prohibited transactionmulti-employer plan. Since April 1, 1979, neither Videoland nor any of its ERISA Affiliates has complied with Section 4204 of ERISA in order to avoid any such "complete withdrawal" or "partial withdrawal";
(15) The transaction contemplated by this Agreement will not result in a Videoland liability for severance or termination pay or result in increased employee benefits becoming payable to any employees of Videoland;
(16) Neither Videoland nor any of its ERISA Affiliates has any unpaid liability in respect of any employee for any contributions and/or premiums due under any Welfare Plan constituting one of the ERISA Plans;
(17) Neither Videoland nor its ERISA Affiliates has any liability as to any benefits to which any employee may be entitled under any Welfare Plan constituting one of the ERISA Plans, whether for benefits due or claims filed; and
(iv18) there have been no acts Videoland does not maintain any health or omissions by the Company life insurance plan that provides for continuing benefits or coverage for any participant or any ERISA Affiliate that have given rise to spouse, dependent or could reasonably beneficiary under such plan after termination of employment, other than as may be expected to give rise to material fines, penalties, taxes or related charges required under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 Section 4980B of the Code for which and regulations thereunder ("COBRA"), and applicable state law. Videoland is in compliance with the Company or any ERISA Affiliate may be liable COBRA notice and neither the Company nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed continuation coverage requirements with respect to Plans maintained by ERISA that would subject the Company or any ERISA Affiliate or any of their respective directors, officers or employees to liability under ERISAVideoland.
(gc) All individuals considered by True, correct and complete copies of the Company following documents, with respect to each of the ERISA Plans, have been delivered to VCI:
(1) Each ERISA Plan document, employment contract, policy, procedure or other governing instrument relating to an ERISA Plan, including all amendments, supplements, collective bargaining agreements, letters, memoranda, understandings and any other document reasonably necessary to reflect the terms and conditions of each ERISA Affiliate to be independent contractors are, and could only be reasonably considered to be, in fact “independent contractors” and are not “employees” or “common law employees” for tax, benefits, wage, labor or any other legal purposePlan.
(h2) No Employee The most recent summary plan description of each ERISA Plan for which a summary plan description is entitled required under ERISA, and summaries of material modification thereto.
(3) All instruments under which the assets of any ERISA Plan are held or managed and benefits provided, including, but not limited to, nor shall any Employee accrue insurance contracts, trust agreements, custodial contracts and investment management agreements.
(4) The two most recent Forms 5500, 5500-C or receive5500-R for each ERISA Plan for which such filing is required, additional benefitswith all attachments and schedules thereto.
(5) The two most recent annual financial statements for each ERISA Plan, services, accelerated rights if not included with such Form 5500 (5500-C or 5500-R).
(6) The most recent actuarial valuation report for each ERISA Plan (as applicable).
(7) With respect to payment of benefits or accelerated vesting, whether pursuant to any Employee each ERISA Plan or otherwise, including the right to receive any parachute payment as defined in that has received a determination letter under Section 280G 401(a) of the Code, or become entitled to severanceand any voluntary employee benefit association trust that has received a determination letter under Section 501(c) of the Code, termination allowance or other similar payments as a result the most recent Internal Revenue Service determination letter (including any letter concerning the tax-exempt status of this Agreement any trust under Section 501(a) of the Code), the application submitted when requesting such determination letter, and the transactions contemplated hereunderany subsequently filed determination letter request.
(id) All options that have been granted Pension Plans shall be terminated by the Company to Employees that purport to be “incentive stock options” under the Code comply with all applicable requirements necessary to qualify for such tax status, and no option is subject Videoland prior to the provisions of Section 409A of the CodeEffective Time.
(j) Neither the Company nor any ERISA Affiliate maintains any “nonqualified deferred compensation plan” subject to Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Video City Inc)
