Pension and Employee Benefit Plans. (a) The Company has set forth on the Company Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company or any of the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Employee Plans"). (b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA. (c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation. (d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statements. (e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement. (f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement). (g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ax Acquisition Corp), Merger Agreement (Dh Technology Inc)
Pension and Employee Benefit Plans. (a) The Company Parent has set forth on the Company Parent Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company Parent or any of the Company Parent Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") Affiliate (together, the "Company Parent Employee Plans").
(b) With respect to each Company Parent Employee Plan, the Company Parent has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS")IRS for benefit plans subject to ERISA, (ii) such Company Parent Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Parent Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Parent Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Parent Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company Parent there exists no condition or set of circumstances, in connection with which the Company Parent or any subsidiary of the Company Parent could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the CorporationAxiohm.
(d) With respect to the Company Parent Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statementslocal accounting principles and practices.
(e) Except as set forth on the Company Parent Disclosure Schedule, provided for in this Agreement, neither the Company Parent nor any of the Company Parent Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company Parent or any of the Company Parent Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company Parent of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Parent Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Parent Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Parent Qualified Plans"). Each Company Parent Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Parent Qualified Plan is a standardized form or of paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Parent Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Parent Qualified Plan, the Company Parent has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Parent Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Parent Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Parent Qualified Plans since the effective date of ERISA (other than as a result of this Agreement).
(g) The Company Parent has identified to the Purchaser which, if any, of the Company Parent Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation Axiohm who participated in multi- multi-employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company Parent nor any of the Company Parent Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company Parent engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 2 contracts
Samples: Merger Agreement (Dh Technology Inc), Agreement and Plan of Merger (Ax Acquisition Corp)
Pension and Employee Benefit Plans. (a) Except as disclosed on SCHEDULE 2.17, there are no plans in effect for pension, profit sharing, deferred compensation, severance pay, bonuses, stock options, stock purchases, warrants or any other form of retirement or deferred benefit, or for any health, accident or other welfare plan, in which any employee of the Company is entitled to participate. The Company previously has delivered to the Purchaser true and complete copies of each of the plans listed or referred to on SCHEDULE 2.17 (collectively the "Plans"), all trust agreements, insurance contracts, investment management agreements and other similar documents currently in effect with respect to the Plans, and all summary plan descriptions currently in effect with respect to the Plans. Each of the Plans is in full force and effect without amendment or modification and has been operated in all material respects in accordance with its terms. Through the date of the Closing, there will be no material change in the operations of the Plans or in the documents constituting or affecting the Plans. All required governmental filings have been made with respect to the Plans. There are no pending investigations or proceedings concerning the Plans before the Internal Revenue Service (the "IRS"), the Department of Labor or the Pension Benefit Guaranty Corporation. There are no pending or, to the knowledge of the Company, threatened claims by or disputes with any participants in the Plans, concerning the Plans, other than benefit claims by participants made in the normal course of operating the Plans. The Company has set forth on no knowledge of any facts which could give rise to claims against the Plans or against any fiduciary of any Plan other than benefit claims by participants expected in the normal course of operating the Plans. Neither the Company Disclosure Schedule nor, to the best of the Company's knowledge, information and belief, any other fiduciary of any Plan has given notice to its fiduciary liability insurer of any claims or potential claims against it with respect to any Plan. True and correct copies of the annual reports of the Plans, if any, filed with the Department of Labor and the IRS for the 1992, 1993 and 1994 fiscal years, and all employee benefit plans (including financial statements of the Plans, if any, for the fiscal years ended December 31, 1992, 1993 and 1994 previously have been delivered to the Purchaser. The Company has not engaged in any "employee benefit plansprohibited transaction" as defined in Section 3(3406(a) and (b) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee as defined in Section 4975 of the Company Code, with respect to any Plan for which any exemption granted by or any pursuant to Section 408 of the Company Subsidiaries ERISA or any trade or business (whether or Section 4975 is not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Employee Plans")available.
(b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statements.
(e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule SCHEDULE 2.17 as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified has been determined by the IRS to qualify under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualificationCode. True and correct copies of the most recent all determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA previously have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement).
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 2 contracts
Samples: Merger Agreement (Chittenden Corp /Vt/), Merger Agreement (Chittenden Corp /Vt/)
Pension and Employee Benefit Plans. (a) The Company has set forth on the Company Disclosure 25 Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide similar employee benefitsbenefit plans, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company or any of the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Employee Plans").
(b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP generally accepted accounting principles, on the Company Financial Statements, which obligations are reasonably expected to have a Material Adverse Effect on the Corporation.
(e) Except as set forth on the Company Disclosure Scheduleprovided for in this Agreement, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits 26 upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan and is the subject of a currently effective determination letter from the IRS Internal Revenue Service confirming such qualification. True and correct copies of the most recent all determination letters from the IRS Internal Revenue Service with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding value of the assets in each of the Company Qualified Plans which is a defined benefit plan exceeds the present value of accrued benefits of all Parent Qualified Plans complies with ERISA participants in such Plan when such benefits are valued on a termination basis using Pension Benefit Guaranty Corporation interest and all applicable lawsother assumptions. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement)ERISA.
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- multi-employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 2 contracts
Samples: Merger Agreement (Nick Acquisition Corp), Merger Agreement (National Education Corp)
Pension and Employee Benefit Plans. All accrued obligations of each of the Companies whether arising by operation of law, by contract, by past custom, or otherwise, for payments by the Companies to any Benefit Plan or to any governmental agency, with respect to unemployment compensation benefits, social security benefits or any other benefits for its present or former employees, directors, agents or independent contractors with respect to employment or services of said individuals through the date hereof: (ai) The Company has have been fully and timely paid; (ii) are reflected in the Financial Statements; or (iii) will be paid in the ordinary course between the date hereof and the Closing Date. Except as set forth on in Section 3.8 of the Company Disclosure Schedule, there are no other plans or arrangements of any kind established, maintained, sponsored or contributed to by the Companies or an ERISA Affiliate or for which the Companies otherwise have or may have any liability as of the Closing Date, either singly or as a result of an ERISA Affiliate. Each of the Benefit Plans listed in the Company Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in that is intended to qualify under Section 3(3) 401 of the Employee Retirement Income Security Act IRC has been the subject of 1974a favorable determination letter as to such status, as amended ("ERISA"))and, whether to Seller's knowledge, nothing has occurred that would cause or not subject is likely to cause a loss or denial of such qualification or the imposition of any penalty, liability, lien or tax under ERISA, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company IRC or any of the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Employee Plans")other applicable law.
(b) 3.8.1. With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee any Pension Benefit Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan that is subject to Title IV of ERISA.
, other than a Multiemployer Plan, that is or was previously sponsored, maintained or contributed to, or with respect to which any of the Companies or any ERISA Affiliate have or had an obligation to contribute: (a) no such plan has been terminated so as to subject, directly or indirectly, any assets of any Company or any ERISA Affiliate to any liability, contingent or otherwise, or the imposition of any liens under Title IV of ERISA; (b) no proceeding has been initiated or, to Seller's knowledge, threatened by any person, including the Pension Benefit Guaranty Corporation, to terminate any such plans; (c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set event exists or, to Seller's knowledge, is expected to occur with respect to any such plan that could subject, directly or indirectly, any assets of circumstances, in connection with which the Company Companies or any subsidiary of the Company could be subject ERISA Affiliate to any liability liability, contingent or otherwise, or the imposition of any lien under ERISA, Title IV of ERISA whether to the Code Pension Benefit Guaranty Corporation or to any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
person; and (d) With no "reportable event," as defined in Section 4043 of ERISA (to the extent that the reporting of such event to the Pension Benefit Guaranty Corporation has not been waived) has occurred and is continuing with respect to any such plan.
3.8.2. None of the Company Employee PlansCompanies or any ERISA Affiliate has ever maintained, individually and in the aggregatecontributed to, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reservesparticipated in, or otherwise properly footnoted in accordance ever been obligated to contribute to, or ever had any liability with US GAAP on the Company Financial Statementsrespect to, any Multiemployer Plan.
3.8.3. No Benefit Plan that is an employee welfare benefit plan (eas defined in Section 3(1) of ERISA) provides benefits to any employees of the Companies beyond termination of employment by reason of retirement or otherwise except as required under the provisions of COBRA.
3.8.4. Except as set forth on may be disclosed in Section 3.8.4. of the Company Disclosure Schedule, neither if at all, no employee of any Company shall accrue or receive additional benefits, service or accelerated rights to payment of benefits under any Benefit Plan maintained by any Company, including the Company nor right to receive any parachute payment (whether an "excess parachute payment" or otherwise) under section 280G of the Company Subsidiaries is IRC, as a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any result of the transactions contemplated by this Agreement.
3.8.5. There are no claims, lawsuits or demands of any kind (fother than routine claims for benefits) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been asserted or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code instituted in respect of such Company Qualified Planany of the Benefit Plans, and has not incurred any liability to the Pension Benefit Guaranty Corporation knowledge of Seller, no basis for any such claim, lawsuit or demand exists and to the knowledge of Seller, there is no investigation or review by any governmental agency that could result in the imposition on any Company of any penalty or assessment in connection with any such Company Qualified Benefit Plan.
3.8.6. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," Except as such term is defined disclosed in ERISA and in regulations issued thereunder, has occurred with respect to any Section 3.8.6 of the Company Qualified Disclosure Schedule, the Benefit Plans since the effective date have been maintained, operated and administered in all material respects in accordance with their terms and with all provisions of ERISA and the IRC (other than as a result of this Agreement).
(g) The Company has identified to including the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISArules and regulations thereunder) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawalother applicable laws.
Appears in 1 contract
Pension and Employee Benefit Plans. (a) The Company Purchaser has set forth on the Company Purchaser Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, ) and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide similar employee benefitsbenefit plans, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company Purchaser or any of the Company Purchaser Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company Purchaser within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Purchaser Employee Plans").
(b) With respect to each Company Purchaser Employee Plan, the Company Purchaser has made or will make available to Parentthe Company and the Stockholders, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Purchaser Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Purchaser Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Purchaser Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Purchaser Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company Purchaser there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company Purchaser could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the CorporationSylvan.
(d) With respect to the Company Purchaser Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP generally accepted accounting principles, on the Company Purchaser Financial Statements, which obligations are reasonably expected to have a Material Adverse Effect on Sylvan.
(e) Except as set forth on the Company Disclosure Scheduleprovided for in this Agreement, neither the Company Purchaser nor any of the Company Purchaser Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company Purchaser or any of the Company Purchaser Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company Purchaser of the nature contemplated by this Agreement, (iii) agreement with any officer providing provided any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
. (f) Each of the Company Purchaser Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Purchaser Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Purchaser Qualified Plans"). Each Company Purchaser Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan and is the subject of a currently effective determination letter from the IRS Internal Revenue Service confirming such qualification. True and correct copies of the most recent all determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement).
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.Internal Revenue
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Sylvan Learning Systems Inc)
Pension and Employee Benefit Plans. (a) The Company has set forth on the Company Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, ) and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide similar employee benefitsbenefit plans, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company or any of the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") Affiliate (together, the "Company Employee Plans").
(b) With respect to each Company Employee Plan, the Company has made or will make available to ParentSylvan, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP generally accepted accounting principles, on the Company Financial Statements, which obligations are reasonably expected to have a Material Adverse Effect on the Corporation.
(e) Except as set forth on the Company Disclosure Scheduleprovided for in this Agreement, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan and is the subject of a currently effective determination letter from the IRS Internal Revenue Service confirming such qualification. True and correct copies of the most recent all determination letters from the IRS Internal Revenue Service with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding value of the assets in each of the Company Qualified Plans which is a defined benefit plan exceeds the present value of accrued benefits of all Parent Qualified Plans complies with ERISA participants in such Plan when such benefits are valued on a termination basis using Pension Benefit Guaranty Corporation interest and all applicable lawsother assumptions. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement)ERISA.
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- multi-employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal).
Appears in 1 contract
Pension and Employee Benefit Plans. (a) 4.20.1 The Company is not a party to and has set forth on the Company Disclosure Schedule all not contributed to any employee pension benefit plans plan (including "employee benefit plans" as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”))) or employee welfare benefit plans (as defined in Section 3(1) of ERISA and including, whether in each case, multi employer plans) or not subject to ERISAany incentive, and all bonus, profit sharing, deferred compensation, stock option, stock purchasepurchase plan or agreement, incentiveseverance, deferred compensation, supplemental retirement, severance and all termination or other programs compensation plan or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit ofarrangement, or relating toany other material employee fringe benefit plans presently maintained by, or contributed to by the Company, as defined below, except those described on Schedule 4.11 hereto. The Company’s pension plans (the “Plans”) are duly qualified under Section 401 of the Internal Revenue Code (the “Code”), all reports and actions required to be taken in connection with such Plans have been so taken, there have been no reportable events or prohibited transactions in connection with such Plans nor any current termination or former employee of partial termination with respect thereto or to any other plan maintained by the Company or any of the Company Subsidiaries by an entity controlling, controlled by, or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company.
4.20.2 The Company and each of the Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA, and those provisions of the Code applicable to Benefit Plans.
4.20.3 Except as may be disclosed on the Financial Statements or the Pre-Closing Balance Sheet, the Company does not have any liability with respect to any Benefit Plan, nor is any asset of the Company subject to any lien under Code Section 401(a)(29), ERISA Section 302(f) or Code Section 412(n), ERISA Section 4068 or arising out of any action filed under ERISA Section 4301(b).
4.20.4 The Company has not incurred any liability that could subject any of the parties to this Agreement to material liability under Section 4062, 4063 or 4064 of ERISA.
4.20.5 The Company is not required to contribute to any multiemployer plan within the meaning of Section 414 of the Code (an "ERISA Affiliate"4001(a)(3) (together, the "or ERISA. The Company Employee Plans").
(b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statements.
(e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any withdrawal liability, within the meaning of Section 4201 of ERISA, to any multiemployer pension plan, which liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As has not been fully paid as of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement).
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 1 contract
Pension and Employee Benefit Plans. (a) Except as set forth in Schedule 4.18 the Company and each of its Subsidiaries has complied in all material respects with all laws, rules and regulations relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health and plant closings ("Employment Laws") and has, and shall have paid or made provisions for in the Closing Balance Sheet all contributions due from it as of the Closing. The Company and each of its Subsidiaries has set forth on made sufficient provisions in its December 31 Balance Sheet in respect of holiday pay. Except as will be reflected in the Closing Balance Sheet, neither the Company Disclosure Schedule all employee benefit plans (including "employee benefit plans" nor any of its Subsidiaries will be liable as defined in Section 3(3) of the Employee Retirement Income Security Act Closing for the payment of 1974any material taxes, as amended ("ERISA"))fines, whether penalties or not subject to ERISAother amounts, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwisehowever designated, for failure to comply with any of the benefit offoregoing Employment Laws.
(b) Except as disclosed in Schedule 4.18, or relating to, neither the Company -------- nor any current or former of its Subsidiaries is a party to any agreement and has not incurred any liability for the provision of benefits to any employee of the Company or any of its Subsidiaries other than those payable, as required by any Employment Laws, or pursuant to, state social security schemes or schemes of national insurance, collective bargaining agreements, or other material Contracts disclosed to Purchaser, including Sweden ITP, (the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA AffiliatePension Schemes") (together, the "Company Employee Plans").
(b) With on or following retirement or death for or in respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statements.
(e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee employees of the Company or any of the Company its Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(fc) Each Except as set forth in Schedule 4.18, the Company's and its Subsidiaries' Pension Schemes have been established, maintained and administered at all times in accordance with all applicable Employment Laws and the Company and each of its Subsidiaries has, as of the Company Employee Plans which is intended to qualify date hereof complied in all material respects with all of its obligations and duties (including statutory duties) under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement)Schemes.
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 1 contract
Samples: Stock Purchase Agreement (United Defense Industries Inc)
Pension and Employee Benefit Plans. (a) The Company has set forth on the Company Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide similar employee benefitsbenefit plans, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company or any of the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Employee Plans").
(b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP generally accepted accounting principles, on the Company Financial Statements, which obligations are reasonably expected to have a Material Adverse Effect on the Corporation.
(e) Except as set forth on the Company Disclosure Scheduleprovided for in this Agreement, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan and is the subject of a currently effective determination letter from the IRS Internal Revenue Service confirming such qualification. True and correct copies of the most recent all determination letters from the IRS Internal Revenue Service with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding value of the assets in each of the Company Qualified Plans which is a defined benefit plan exceeds the present value of accrued benefits of all Parent Qualified Plans complies with ERISA participants in such Plan when such benefits are valued on a termination basis using Pension Benefit Guaranty Corporation interest and all applicable lawsother assumptions. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement)ERISA.
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- multi-employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 1 contract
Pension and Employee Benefit Plans. (a) The Company has set forth on Section 4.8 of the Company Disclosure Seller's Schedule contains a complete list of all employee benefit plans (including "plans, whether formal or informal, whether or not set forth in writing, and whether covering one person or more than one person, currently sponsored or maintained by Seller, including, without limitation, all plans, funds, programs, policies, arrangements, practices, customs and understandings providing benefits of economic value to any employee, former employee, or present or former beneficiary, dependent or assignee of any such employee benefit plans" as defined or former employee other than regular salary, wages or commissions paid substantially concurrently with the performance of the services for which paid and those matters described in Section 3(34.7 of the Seller's Schedule, including, but not limited to, all employee welfare benefit plans within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, ; and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the pension benefit of, or relating to, any current or former employee of the Company or any of the Company Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company plans within the meaning of Section 414 3(2) of ERISA (collectively "Employee Benefit Plans"). Sellers have delivered or made available to Buyer a true, correct and complete copy of each Employee Benefit Plan document, trust agreement, insurance contract, summary plan description and annual report (for 1994 and 1995, the two most recent plan years for which annual reports are currently available) relating to an Employee Benefit Plan currently maintained by Seller.
(b) With respect to each Employee Benefit Plan currently maintained by Seller which is intended to be qualified within the meaning of Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code"):
(i) The Internal Revenue Service ("IRS") has issued a favorable letter of determination and any amendments required by the Code to have been adopted as of the date hereof as a condition of retention of such qualified status have been timely adopted;
(ii) The IRS has not revoked any letter of determination to which reference is made in subparagraph (i) hereof, nor has the IRS notified the Company of its intention or contemplation of doing so; and
(iii) The Company's 401(k) profit-sharing plan met the requirements for a qualified cash or deferred arrangement as set forth in Section 401(k)(3) of the Code through the third quarter of 1996 and the contribution percentage requirement as set forth in Section 401(m)(2) of the Code in each case with respect to the most recent completed plan year thereof.
(i) There does not exist any accumulated funding deficiency within the meaning of either Section 412 of the Code or Section 302 of ERISA as to any Employee Benefit Plan currently maintained by Seller nor has any waiver of the minimum funding standards imposed by the Code been granted by the IRS with respect to any such Plan. No Employee Benefit Plan currently maintained by Seller is subject to Section 412 of the Code or Title IV of ERISA. Neither the Company nor any entity that, together with the Company, is treated as a single employer under Section 414(b), 414(c), 414(m) or 414(o) of the Code (an "ERISA Affiliate") (together, has any liability or potential liability under Section 412 of the "Company Employee Plans").
(b) With respect to each Company Employee Plan, the Company has made Code or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge ERISA as a result of the Company there exists no condition underfunding or set of circumstancestermination of, in connection with which or withdrawal from, any plan by the Company or any subsidiary ERISA Affiliate.
(ii) All contributions payable to any Employee Benefit Plan for any plan year have been paid in full or are fully reflected on the December 31, 1996 Balance Sheet included in Section 4.4.1 of the Company could Seller's Schedule.
(iii) All insurance premiums due or payable for coverage through the Closing Date with respect to all Employee Benefit Plans have been or will be subject to any liability under ERISA, the Code paid in full or any other applicable law that is reasonably likely to have a Material Adverse Effect will be fully reflected on the CorporationClosing Date Statement, and no such premium is overdue or in its grace period.
(d) With respect to all Employee Benefit Plans currently maintained by Seller, the Company Employee Planshas not incurred, individually and nor engaged in the aggregate, there are no funded benefit obligations for any transaction which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted may result in accordance with US GAAP imposition on the Company Financial Statementsof, any excise tax under Sections 4971 through 4980, inclusive, of the Code.
(e) Except as set forth on the Company Disclosure ScheduleOther than routine claims for benefits, neither the Company Seller has not incurred any liability to, nor has Seller received notice of any pending or threatened action, claim, demand, grievance or allegation of the Company Subsidiaries is a party to unfair labor practice of any oral kind by, any potential claimant or written representative of such claimant under any Employee Benefit Plan where Seller may be either (i) union liable directly on such action, claim or collective bargaining agreement, demand; or (ii) agreement obligated to indemnify any person, group of persons or entity with respect to such action, claim or demand. Seller has not incurred any officer liability to, nor has Seller received notice of any claim pending or other key employee of the Company or any of the Company Subsidiariesthreatened by, the benefits of which are contingent, IRS or the Department of Labor with respect to any Employee Benefit Plan. Each Employee Benefit Plan has been maintained, operated and administered in all material respects in accordance with its terms and in accordance with all provisions of which are materially altered, upon ERISA and the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, Code (iiiincluding rules and regulations thereunder) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or and other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementapplicable laws.
(f) Each To the best knowledge of the Company Employee Plans Seller, there is no investigation, proceeding, administrative review or other administrative agency process which is intended to qualify under Section 401 of the Code is designated has resulted in or could result in imposition on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver Seller of any minimum funding requirements imposed by ERISA penalty or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation other assessment in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement)Employee Benefit Plans.
(g) The Company Seller has identified filed or caused to be filed on a timely basis each return, report, statement, notice, declaration and other document required by any federal, state or local governmental agency (including, without limitation, the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) IRS and the number Department of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, Labor) with respect to each Employee Benefit Plan sponsored or maintained by it. Seller has withheld and remitted to the proper depository all income taxes and wage taxes on benefits under its Employee Benefit Plans, to the extent such withholding is required by law.
(h) To the best of Seller's knowledge, Seller has operated, and has caused its appointees and nominees to operate, each and every Employee Benefit Plan in a manner which is in material compliance with all applicable laws, regulations and administrative agency rules and requirements applicable thereto. Every employee, former employee, and every dependent of the foregoing entitled to continuation of benefit coverage under any multi-employer plan, suffered Employee Benefit Plan has been accorded all of the rights to which such person is entitled as a matter of law or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawalregulation.
Appears in 1 contract
Pension and Employee Benefit Plans. (a) The Company Purchaser has set forth on the Company Purchaser Disclosure Schedule all employee benefit plans (including "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to ERISA, ) and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all other programs or arrangements intended to provide similar employee benefitsbenefit plans, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company Purchaser or any of the Company Purchaser Subsidiaries or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company Purchaser within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Purchaser Employee Plans").
(b) With respect to each Company Purchaser Employee Plan, the Company Purchaser has made or will make available to Parentthe Company, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Purchaser Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Purchaser Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Purchaser Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Purchaser Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company Purchaser there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company Purchaser could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the CorporationSylvan.
(d) With respect to the Company Purchaser Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP generally accepted accounting principles, on the Company Purchaser Financial Statements, which obligations are reasonably expected to have a Material Adverse Effect on Sylvan.
(e) Except as set forth on the Company Disclosure Scheduleprovided for in this Agreement, neither the Company Purchaser nor any of the Company Purchaser Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company Purchaser or any of the Company Purchaser Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company Purchaser of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Purchaser Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Purchaser Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Purchaser Qualified Plans"). Each Company Purchaser Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan and is the subject of a currently effective determination letter from the IRS Internal Revenue Service confirming such qualification. True and correct copies of the most recent all determination letters from the IRS Internal Revenue Service with respect to the Company Purchaser Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Purchaser Qualified Plan, the Company Purchaser has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Purchaser Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Purchaser Qualified Plan. As of the date hereof, the funding value of the assets in each of the Purchaser Qualified Plans which is a defined benefit plan exceeds the present value of accrued benefits of all Parent Qualified Plans complies with ERISA participants in such Plan when such benefits are valued on a termination basis using Pension Benefit Guaranty Corporation interest and all applicable lawsother assumptions. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Purchaser Qualified Plans since the effective date of ERISA (other than as a result of this Agreement)ERISA.
(g) The Company Purchaser has identified to the Purchaser Company which, if any, of the Company Purchaser Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation Sylvan who participated in multi- multi-employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company Purchaser nor any of the Company Purchaser Subsidiaries has, with respect to any multi-multi- employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal).
Appears in 1 contract
Pension and Employee Benefit Plans. (a) The Company has set forth on the Company Disclosure Schedule all employee benefit plans (including "following representations pertain to “employee benefit plans" ” as defined in by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ERISA ("ERISA")), whether or not such plans are subject to ERISA), and all bonus, incentive compensation, deferred compensation, profit sharing, stock option, restricted stock, stock appreciation right, stock bonus, stock purchase, incentive, deferred compensation, supplemental retirement, severance and all life insurance, or any other employee benefit plans, programs or arrangements intended to provide employee benefits(whether written or oral, qualified or nonqualified), and all unexpired employment, consulting, retention, termination, severance agreementsor other contracts or arrangements, written whether legally enforceable or otherwisenot, and any trust, escrow or other agreement related thereto, to which Buyer or any ERISA Affiliate thereof is a party which (i) is now or was for the benefit oflast six (6) years maintained or contributed to by Buyer or an ERISA Affiliate thereof (as hereinafter defined), or relating to, (ii) with respect to which Buyer or any ERISA Affiliate thereof has any obligations to any current or former officer, employee, consultant or independent contractor, leased employee or the dependents of any thereof, regardless of whether funded, or (iii) which could result in the Company imposition of any liability or obligation of any of the Company Subsidiaries kind or any trade or business (nature, and whether or not incorporated) which is a member now due or which is under common control with the Company within the meaning of Section 414 to become due to Buyer or any ERISA Affiliate thereof (all of the Code (an "ERISA Affiliate") (together, above shall be collectively referred to as the "Company “ Buyer Employee Plans"”).
(b) With respect [Reserved]
(c) Except as set forth in Schedule 4.25(c) to each Company Employee PlanBuyer’s Disclosure Supplement, the Company neither Buyer nor any ERISA Affiliate has made or will make available been liable at any time for contributions to Parent, a true and correct copy of (i) a plan or program that is, or has been at any time, subject to Section 412 of the most recent annual report Code, Section 302 of ERISA and/or Title IV of ERISA or (Form 5500ii) filed with a “multiemployer plan” (as defined in Section 3(39) of ERISA). Schedule 4.25(c) to Buyer’s Disclosure Supplement also indicates whether (i) any Buyer Employee Plan has an “accumulated funding deficiency” (whether or not waived) within the Internal Revenue Service ("IRS")meaning of Section 412 of the Code or Section 302 of ERISA, (ii) such Company Employee PlanBuyer or any ERISA Affiliate has an outstanding funding waiver, (iii) each trust agreement and group annuity contract, if any, relating Buyer or any ERISA Affiliate is required to such Company provide security for any Employee Plan and pursuant to Section 401(a)(29) of the Code or (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurredif, and to the knowledge of the Company there exists no condition extent, any unfunded liabilities (past, present or set of circumstances, in connection future) exist with which the Company or any subsidiary of the Company could be subject respect to any liability under Buyer Employee Plan.
(d) Except as set forth in Schedule 4.25(d) to Buyer’s Disclosure Supplement, the form and operation of all Buyer Employee Plans are in all material respects in compliance with the applicable provisions of ERISA, the Code or Code, and any other applicable law laws, including the Americans with Disabilities Act of 1990, the Family Medical Leave Act of 1993 and the Health Insurance Portability and Accountability Act of 1996, and such Buyer Employee Plans have been operated in all material respects in compliance with such laws and the written Buyer Employee Plan documents. To the Knowledge of Buyer, neither Buyer nor any fiduciary of a Buyer Employee Plan has violated the requirements of Section 404 of ERISA with respect to any Buyer Employee Plan. All required reports (including IRS Form 5500 annual reports and summary annual reports) have been (when required) timely filed with the IRS and the United States Department of Labor (the “DOL”). To the Knowledge of Buyer, all summary plan descriptions and summaries of material modifications and other notices required by ERISA or the Code with respect to the Buyer Employee Plans have been timely distributed as required to all participants, alternate payees and beneficiaries, and all such summary plan descriptions, summaries of material modifications and other notices have complied and currently comply with applicable Law and are consistent with the terms and provisions of the corresponding written Buyer Employee Plan documents. To the Knowledge of Buyer, there have been no prohibited transactions with respect to the Buyer Employee Plans that is will or could reasonably likely to have result in a Material Adverse Effect on Buyer and its Subsidiaries taken as a whole. Any contributions, including salary deferrals, required to be made under the Corporation.
(d) With respect to terms of any of the Company Buyer Employee Plans, individually and in Plans by Buyer as of the aggregate, there are no funded benefit obligations for which contributions Effective Date of the Merger have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statementstimely made.
(e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Buyer Employee Plans which Plan that is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is be qualified under Section 401(a) of the Code andhas received a favorable determination letter from the IRS, unless and Buyer is not aware of any circumstances that will or could reasonably result in revocation of any such favorable determination letter. Each trust created under any Buyer Employee Plan has been determined to be exempt from taxation under Section 501(a) of the Company Qualified Code, and to the Knowledge of Buyer there are no circumstances that will or could reasonably result in a revocation of such exemption. Each Buyer Employee Plan that is a standardized form or paired an employee welfare benefit plan (as defined in Revenue Procedure 97-6Section 3(1) each Parent Qualified Plan of ERISA) that utilizes a funding vehicle described in Section 501(c)(9) of the Code or is subject to the provisions of Section 505 of the Code has been the subject of a currently effective determination letter from notification by the IRS confirming that such qualification. True and correct copies funding vehicle qualifies for tax-exempt status under Section 501(c)(9) of the most recent determination letters from Code or that the Buyer Employee Plan complies with Section 505 of the Code, unless the IRS does not, as a matter of policy, issue such notification with respect to the Company Qualified Plans which were issued after the effective date particular type of ERISA have been or will be delivered to the Purchaserfunding vehicle. With respect to each Company Qualified Buyer Employee Plan, to the Company Knowledge of Buyer no event has not obtained occurred or condition exists that will or could give rise to a waiver loss of any minimum funding requirements imposed intended tax consequence or to any tax under Section 511 of the Code.
(f) Except as disclosed on Schedule 4.25(f) of Buyer’s Disclosure Supplement, there are no pending claims, lawsuits or actions relating to any Buyer Employee Plan (other than ordinary course claims for benefits) and, to the best knowledge of Buyer, none are threatened.
(g) No written or oral representations have been made, and no Buyer Employee Plans provide, for the continuation of medical, dental, life or disability insurance coverage for any period of time beyond the earlier of (i) the end of the current plan year, or (ii) the termination of employment (except to the extent of coverage required under COBRA), except as provided in any Contracts disclosed in Buyer’s Disclosure Supplement.
(h) Except as disclosed on Schedule 4.25(h) of Buyer’s Disclosure Supplement and except for the possibility of full vesting of plan account balances which may be necessitated by ERISA or Section 411(d)(3) of the Code in respect order for tax-qualified status to be retained, the consummation of such Company Qualified Planthe transactions contemplated by this Agreement will not accelerate the time of vesting, of payment, or increase the amount, of compensation to any employee, officer, former employee or former officer of Buyer or any ERISA Affiliate.
(i) Buyer and any ERISA Affiliate thereof have at all times complied and currently comply in all material respects with the applicable continuation requirements for their group health plans, including (1) Section 4980B of the Code and Sections 601 through 608, inclusive, of ERISA, which provisions are referred to collectively as “COBRA” and (2) any applicable state statutes mandating health insurance continuation coverage for employees.
(j) Except as disclosed in Schedule 4.25(j) to Buyer’s Disclosure Supplement, neither Buyer nor any ERISA Affiliate has not incurred any liability to the DOL, the Pension Benefit Guaranty Corporation (the “PBGC”) or the IRS in connection with any such Company Qualified Plan. As of the date hereofBuyer Employee Plans, and, to the Knowledge of Buyer, except as disclosed in Schedule 4.25(j) to Buyer’s Disclosure Supplement, no condition exists that presents a risk to Acquired Buyer or any ERISA Affiliate of incurring any liability to the DOL, the funding PBGC or the IRS.
(k) For the purpose of all Parent Qualified this Section 4.25, the term “ERISA Affiliate” shall mean (i) any related company or trade or business that is required to be aggregated with Buyer under Code Sections 414(b), (c), (m) or (o); (ii) any other company, entity or trade or business that has adopted or has ever participated in any Buyer Employee Plan; and (iii) any predecessor or successor company or trade or business of Buyer or any entity described in this Section 4.25(k).
(l) Buyer and any ERISA Affiliate have properly classified individuals providing services to such entities as independent contractors or employees, as the case may be for purposes of eligibility to participate in the Buyer Employee Plans complies with ERISA and all applicable laws. No "reportable event," such classifications have not been challenged by the IRS.
(m) Except as such term is defined disclosed in ERISA and in regulations issued thereunderSchedule 4.25(m) to the Buyer’s Disclosure Supplement, has occurred no lien, security interests or other encumbrances exist with respect to any of the Company Qualified Plans since assets of Buyer or any ERISA Affiliate that were imposed pursuant to the effective date terms of the Code or ERISA (other than as a and, to the Knowledge of Buyer, no condition exists or could occur that would result in the imposition of this Agreement)such liens, security interests or encumbrances arising from or relating to the Buyer Employee Plans.
(gn) The Company has identified [Reserved]
(o) To the Knowledge of Buyer, Buyer is not delinquent in payments to any of its employees for any wages, salaries, commissions, bonuses or other direct compensation for any services performed for it or any other amounts required to be reimbursed to such employees (including accrued paid time off, accrued vacation, accrued sick leave and other benefits) or in the payment to the Purchaser whichappropriate governmental authority of all required taxes, if anyinsurance, social security and withholding thereon; and as of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees Effective Date of the Corporation who participated in multi- employer plans during the year ended December 31Merger, 1996. Since April 29, 1980, neither the Company nor Buyer will not have an obligation or liability to any of the Company Subsidiaries has, with respect its employees or to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as governmental authority for any such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawalmatters.
Appears in 1 contract
Samples: Merger Agreement (Superior Bancorp)
Pension and Employee Benefit Plans. (a) The Company is not a party to and has set forth on the Company Disclosure Schedule all not contributed to any employee pension benefit plans plan (including "employee benefit plans" as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))) or employee welfare benefit plans (as defined in Section 3(1) of ERISA and including, whether in each case, multi-employer plans) or not subject to ERISAany incentive, and all bonus, profit sharing, deferred compensation, stock option, stock purchasepurchase plan or agreement, incentiveseverance, deferred compensation, supplemental retirement, severance and all termination or other programs compensation plan or arrangements intended to provide employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit ofarrangement, or relating toany other material employee fringe benefit plans presently maintained by, any current or former employee of contributed to by the Company or any current Affiliate, as defined below, except those described on Section 4.10 of the Disclosure Schedule. The Company's pension --------------------------------------- plans that are intended to be income tax qualified (the "Plans") are duly qualified under Section 401 of the Internal Revenue Code (the "Code"), all reports and actions required to be taken in connection with such Plans have been so taken, there have been no reportable events or prohibited transactions in connection with such Plans nor any termination or partial termination with respect thereto or to any other plan maintained by the Company Subsidiaries or any trade by an entity controlling, controlled by or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA Affiliate") (togetherwith, the "Company Employee Plans")Company.
(b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a A true and correct complete copy of (i1) each Plan and any related agreement, and (2) all summary plan descriptions, (3) the most recent annual report report, (Form 55004) filed with the most recent actuarial valuation (if applicable), (5) any other financial statements or disclosures, and (6) the most recent determination letter received from the Internal Revenue Service ("IRS"if applicable), (ii) such Company Employee with respect to any Plan, (iii) each trust agreement and group annuity contract, if any, relating has been furnished to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISABuyer.
(c) With respect to The Company, each current Affiliate and each of the Company Employee Plans, individually and are in compliance in all material respects with the aggregate, no event has occurredapplicable provisions of ERISA, and to the knowledge those provisions of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject Code applicable to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the CorporationPlans.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP Except as may be disclosed on the Company Financial Statements.
(e) Except as set forth on the Company Disclosure ScheduleBalance Sheet, neither the Company nor any of the Company Subsidiaries is a party current Affiliate has any liability with respect to any oral or written Plan that is not fully reflected in the materials delivered to Buyers pursuant to subsection (i) union or collective bargaining agreementb), (ii) agreement with nor is any officer or other key employee asset of the Company or any current Affiliate subject to any lien under Code Section 401(a)(29), ERISA Section 302(f) or Code Section 412(n), ERISA Section 4068 or arising out of any action filed under ERISA Section 4301(b).
(e) Neither the Company or any other employer (an "Affiliate") that is, or was at any time after September 2, 1974, together with the Company, treated as a "single employer" under section 414(b), 414(c) or 414(m) of the Company Subsidiaries, the benefits of Code incurred any liability which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, could subject any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by parties to this Agreement to material liability under Section 4062, 4063 or the value 4064 of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementERISA.
(f) Each of Neither the Company Employee Plans which nor any current Affiliate is intended required to qualify under contribute to any multiemployer plan, within the meaning of Section 401 of the Code is designated on 4001(a)(3) or ERISA. Neither the Company Disclosure Schedule as being a qualified plan (nor any Affiliate, while an Affiliate, has incurred any withdrawal liability, within the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under meaning of Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date 4201 of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Planany multiemployer pension plan, the Company which liability has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As been fully paid as of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement).
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 1 contract
Pension and Employee Benefit Plans. (a) The Company has set Set forth on Section 2.22(a) of the Company Disclosure Schedule all employee benefit plans (including is a true and complete list of each employment, consulting, severance or other similar contract, arrangement or policy, each "employee benefit plansplan" within the meaning of ERISA Section 3(3) and each plan, arrangement (written or oral), program, agreement or commitment providing for insurance coverage (including without limitation any self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, life, health or accident benefits (including without limitation any "voluntary employees' beneficiary association" as defined in Section 501(c)(9) of the Code providing for the same or other benefits) or for deferred compensation, profit-sharing bonuses, stock options, stock appreciation rights, stock purchases or other forms of incentive compensation or post-retirement insurance, compensation or benefits which within the six years ending on the Closing Date is or has been entered into, maintained, contributed to or required to be contributed to, as the case may be, by the Company or an ERISA Affiliate or under which the Company or any ERISA Affiliate may incur any liability, and which covers any employee or former employee of the Company or any ERISA Affiliate (each, an "Employee Plan"). -------------
(b) True and complete copies of each of the following documents have been delivered by the Company to Buyer: (i) each Employee Plan (and, if applicable, related trust agreements) which covers or has covered employees of the Company or any of its Subsidiaries (each, a "Company Plan") and all ------------ amendments thereto, all written interpretations thereof and written descriptions thereof which have been distributed to the Company employees and all annuity contracts or other funding instruments, and a complete description of any Company Plan which is not in writing, (ii) for each Company Plan: the most recent determination letter issued by the Internal Revenue Service, Annual Reports on Form 5500 Series for the three most recent plan years, actuarial reports prepared for the last three plan years, (iii) a description of complete age, salary, service and related data as of the last day of the last plan year for employees and former employees of the Company, and (vii) a description setting forth the amount of any liability of t he Company and its Subsidiaries as of the Closing Date for payments more than thirty (30) calendar days past due with respect to each Company Plan that is a "welfare plan" (as defined in ERISA Section 3(1)).
(c) No Company Plan other than the Xxxxxx and Xxxxxxx, Inc. Employee Savings and Retirement) Plan (the "401(k) Plan") is a "pension plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ERISA ("ERISA")), whether or not subject to ERISA). No Company Plan is subject to Title IV or Section 302 of ERISA or Section 412 of the Code. None of the Company, or any ERISA Affiliate has , at any time, contributed to or been required to contribute to a "multiemployer plan" as defined in ERISA Section 3(37).
(d) The 401(k) Plan and trust thereunder is qualified and tax-exempt under the provisions of Code Sections 401(a) and 501(a) and has been so qualified during the period from its adoption to date. Each Company Plan, each related trust agreement, annuity contract or other funding instrument presently complies and has been maintained in compliance with its terms and, both as to form and in operation, with the requirements prescribed by any and all bonusstatutes, stock optionorders, stock purchaserules and regulations which are applicable to such plans, incentiveincluding without limitation ERISA and the Code.
(e) There is no contract, deferred compensationagreement, supplemental retirement, severance and all other programs plan or arrangements intended to provide arrangement covering any employee benefits, and all unexpired severance agreements, written or otherwise, for the benefit of, or relating to, any current or former employee of the Company that, individually or collectively, provides for the payment by the Company or any Subsidiary of the Company Subsidiaries any amount (i) that is not deductible under Section 162(a)(1) or any trade or business (whether or not incorporated) which is a member or which is under common control with the Company within the meaning of Section 414 404 of the Code or (ii) that is an "ERISA Affiliate") (together, excess parachute payment" pursuant to Section 280G of the "Company Employee Plans")Code.
(bf) With respect There is no action, order, writ, injunction, judgment or decree outstanding or claim, suit, litigation, proceeding, arbitral action, governmental audit or investigation relating to each Company or seeking benefits under any Employee Plan that is pending, threatened or anticipated against the Company, any ERISA Affiliate or any Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(cg) With respect to the Company Employee Plans, individually and in the aggregate, no No event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, occurred in connection with which the Company or any subsidiary of the Company Plan, directly or indirectly, could be subject to any material liability (A) under ERISAany statute, regulation or governmental order relating to any Employee Plans or (B) pursuant to any obligation of the Code Company to indemnify any Person against liability incurred under any such statute, regulation or order as they relate to the Employee Plans.
(h) Neither the execution and delivery of this Agreement or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for agreement contemplated hereby by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statements.
(e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any consummation of the transactions contemplated by this Agreement hereby or thereby will result in the acceleration or creation of any rights of any person to benefits under any Employee Plan (including, without limitation, the acceleration of the accrual or vesting of any benefits or the value acceleration or creation of any of the benefits of which will be calculated on the basis of rights under any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code andseverance, unless the Company Qualified Plan is a standardized form parachute or paired plan (as defined change in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreementcontrol agreement).
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 1 contract
Pension and Employee Benefit Plans. (a) The Company Seller is not a party to and has set forth on the Company Disclosure Schedule all not contributed to any employee pension benefit plans plan (including "employee benefit plans" as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))) or employee welfare benefit plans (as defined in Section 3(1) of ERISA and including, whether in each case, multi-employer plans) or not subject to ERISAany incentive, and all bonus, profit sharing, deferred compensation, stock option, stock purchasepurchase plan or agreement, incentiveseverance, deferred compensationtermination or other compensation plan or arrangement, supplemental retirementor any other material employee fringe benefit plans presently maintained by, severance or contributed to by the Seller or any current Affiliate, as defined below, except those described on Section 4.10 of the Disclosure Schedule. The Seller's pension plans --------------------------------------- (the "Plans") are duly qualified under Section 401 of the Internal Revenue Code (the "Code"), all reports and all actions required to be taken in connection with such Plans have been so taken, there have been no reportable events or prohibited transactions in connection with such Plans nor any termination or partial termination with respect thereto or to any other programs plan maintained by the Seller or arrangements intended to provide employee benefitsby an entity controlling, controlled by or under common control with, the Seller.
(b) A true and complete copy of (1) each Benefit Plan and any related agreement, and (2) all unexpired severance agreementssummary plan descriptions, written (3) the most recent annual report, (4) the most recent actuarial valuation (if applicable), (5) any other financial statements or otherwisedisclosures, for and (6) the benefit ofmost recent determination letter received from the Internal Revenue Service (if applicable), with respect to any Benefit Plan, has been furnished to the Buyer.
(c) The Seller, each current Affiliate and each of the Benefit Plans, are in compliance in all material respects with the applicable provisions of ERISA, and those provisions of the Code applicable to Benefit Plans.
(d) Except as may be disclosed on the Balance Sheet, neither the Seller nor any current Affiliate has any liability with respect to any Benefit Plan that is not fully reflected in the materials delivered to Buyers pursuant to subsection (b), nor is any asset of the Seller or any current Affiliate subject to any lien under Code Section 401(a)(29), ERISA Section 302(f) or Code Section 412(n), ERISA Section 4068 or arising out of any action filed under ERISA Section 4301(b).
(e) Neither the Seller or any other employer (an "Affiliate") that is, or relating towas at any time after September 2, any current 1974, together with the Seller, treated as a "single employer" under section 414(b), 414(c) or former employee 414(m) of the Company or Code incurred any liability which could subject any of the Company Subsidiaries parties to this Agreement to material liability under Section 4062, 4063 or 4064 of ERISA.
(f) Neither the Seller nor any trade or business (whether or not incorporated) which current Affiliate is a member or which is under common control with the Company required to contribute to any multiemployer plan, within the meaning of Section 414 of the Code (an "ERISA Affiliate") (together, the "Company Employee Plans"4001(a)(3).
(b) With respect to each Company Employee Plan, the Company has made or will make available to Parent, a true and correct copy of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such Company Employee Plan, (iii) each trust agreement and group annuity contract, if any, relating to such Company Employee Plan and (iv) the most recent actuarial report or valuation relating to a Company Employee Plan subject to Title IV of ERISA.
(c) With respect to the Company Employee Plans, individually and in the aggregate, no event has occurred, and to the knowledge of the Company there exists no condition or set of circumstances, in connection with which the Company or any subsidiary of the Company could be subject to any liability under ERISA, the Code or any other applicable law that is reasonably likely to have a Material Adverse Effect on the Corporation.
(d) With respect to the Company Employee Plans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with US GAAP on the Company Financial Statements.
(e) Except as set forth on the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any oral or written (i) union or collective bargaining agreement, (ii) agreement with any officer or other key employee of the Company or any of the Company Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (iii) agreement with any officer providing any term of employment or compensation guarantee extending for a period longer than one year from the date hereof, providing for the payment of compensation in excess of $100,000 per annum or providing for severance benefits or other benefits upon or following termination of employment, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(f) Each of the Company Employee Plans which is intended to qualify under Section 401 of the Code is designated on the Company Disclosure Schedule as being a qualified plan (the Plans so designated being hereinafter referred to as the "Company Qualified Plans"). Each Company Qualified Plan is qualified under Section 401(a) of the Code and, unless the Company Qualified Plan is a standardized form or paired plan (as defined in Revenue Procedure 97-6) each Parent Qualified Plan is the subject of a currently effective determination letter from the IRS confirming such qualification. True and correct copies of the most recent determination letters from the IRS with respect to the Company Qualified Plans which were issued after the effective date of ERISA have been or will be delivered to the Purchaser. With respect to each Company Qualified Plan, the Company has not obtained a waiver of any minimum funding requirements imposed by ERISA or the Code in respect of such Company Qualified Plan, and has not incurred any liability to the Pension Benefit Guaranty Corporation in connection with any such Company Qualified Plan. As of the date hereof, the funding of all Parent Qualified Plans complies with ERISA and all applicable laws. No "reportable event," as such term is defined in ERISA and in regulations issued thereunder, has occurred with respect to any of the Company Qualified Plans since the effective date of ERISA (other than as a result of this Agreement).
(g) The Company has identified to the Purchaser which, if any, of the Company Employee Plans are multi-employer pension plans (as defined by ERISA) and the number of employees of the Corporation who participated in multi- employer plans during the year ended December 31, 1996. Since April 29, 1980, neither the Company nor any of the Company Subsidiaries has, with respect to any multi-employer plan, suffered or otherwise caused a "complete withdrawal" or "partial withdrawal" (as such terms are defined by ERISA) nor has the Company engaged in any transaction that would be deemed to avoid or evade liabilities related to such withdrawal.
Appears in 1 contract
