Pension and Welfare Benefit Plans. With respect to the Employee --------------------------------- Benefit Plans and Terminated Employee Benefit Plans, each as described on Schedule 3.18: (i) each Employee Benefit Plan is in compliance with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to such Employee Benefit Plans, including but not limited to ERISA and the Code, and each Employee Benefit Plan has been administered in accordance with its terms; (ii) with respect to the Company's employee welfare benefit plans, any trust related to such ERISA Plans (which term shall have the meaning set forth in Section 3(3) of the ERISA with respect to employee benefit plans maintained or contributed to by the Company, or any of its affiliates that currently cover employees and are subject to ERISA) has been determined to be tax-exempt by the IRS pursuant to Code (S) 501(c)(9) and nothing has since occurred from the time of such determination to cause the loss of such trust's tax-exempt status. Each ERISA Plan intended to be qualified pursuant to Code (S) 401(a) and Code (S) 501(a) is qualified under Code (S) 401(a) and Code (S) 501(a) and has received a determination letter from the IRS covering the Tax Reform Act of 1986, as amended, that such ERISA Plans are so qualified and each trust established in connection with any such plan is exempt from federal income taxation and nothing (either in form or operation) has since occurred from the date of the last favorable determination letter to cause the loss of such ERISA Plans' or trusts' qualification; (iii) all required reports and descriptions of such ERISA Plans (including without limitation the IRS Form 5500 Annual Return/Report, summary annual report and summary plan description) have been timely filed and distributed; (iv) any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to such Employee Benefit Plans have been appropriately given; (v) all required contributions for all periods ending prior to Closing (including periods from the first day of the current plan year to Closing) will be made to such Employee Benefit Plans prior to the Closing Date by the Company; (vi) the Company does not have any action directly or indirectly that obligates the Company to institute, modify or change any Employee Benefit Plan, any change in the manner in which contributions are made or the basis on which such contributions are determined; (vii) all insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to such Employee Benefit Plans for policy years or other applicable policy periods ending on or before Closing; (viii) with respect to each such Employee Benefit Plan, the Company and its affiliates have not engaged in any prohibited transactions (as defined in ERISA (S) 406 or Code (S) 4975), no penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) are pending, threatened or imminent against or with respect to such Employee Benefit Plans, the Company or any fiduciary (as defined in ERISA (S) 3(21)) of such Employee Benefit Plans (including any action, suit, grievance, arbitration or other manner of litigation, or claim regarding conduct which allegedly interferes with the attainment of rights under such plans), neither the Company nor any fiduciary with respect to such plans has any knowledge of any facts that would give rise to or could give rise to any penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim, and the Company has not incurred any lien under Section 401(a)(29) or any material liability for any tax or civil penalty imposed by Section 4971 or 4976 of the Code or Section 502 of ERISA and no condition or set of circumstances exists that presents a risk to the Company of incurring any such lien or liability; (ix) no Employee Benefit Plan is (A) a "defined benefit" plan (as defined in Section 3(35) of ERISA, (B) a "multiemployer plan" within the meaning of Section 3(37) of ERISA, (C) a "multiple employer" or a "multiple employer welfare arrangement" within the meaning of Section 413(c) of the Code or Section 514(b)(6) of ERISA, respectively, or (D) a "welfare benefit fund" as defined in Section 419(e) of the Code; (x) the Company is not subject to any liability under Title IV of ERISA, including any withdrawal liability on behalf of a multiemployer plan; (xi) none of the Company or any of its members, managers, advisors, officers, employees or any other fiduciary has any liability for a material breach of fiduciary responsibility imposed by ERISA for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such Employee Benefit Plans; (xii) except as disclosed on Schedule 3.18, none of such Employee Benefit Plans has been completely or partially terminated; (xiii) no current or former employee of the Company will be entitled to any payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Employee Benefit Plan will be entitled to payment as a result of the transactions contemplated by this Agreement; (xiv) there is no pending or threatened litigation, action, suit, proceeding or investigation against or involving such Employee Benefit Plans and, to the best knowledge of the Company, there is no basis for any litigation, action, suit, proceeding or investigation; and (xv) no Employee Benefit Plan provides medical, life or other welfare benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law). With respect to any contract or arrangement with an insurance company providing funding under any Employee Benefit Plan, there is no material liability for any retroactive rate adjustment. Except as disclosed on Schedule 3.18, the Company has the right to amend or terminate its participation with respect to each Employee Benefit Plan. Each Employee Benefit Plan that is a "group health plan," as defined in Section 5000 of the Code has been operated in accordance with Section 4980B of the Code, Section 9801 and the secondary payor requirements of Section 1862(b) of the Social Security Act.
Appears in 1 contract
Samples: Purchase Agreement (Superior Trucks & Auto Supply Inc)
Pension and Welfare Benefit Plans. With respect to the Employee --------------------------------- Benefit Plans and Terminated Employee Benefit Plans, each as described on Schedule 3.183.18(a), to Superior's knowledge:
(i) each Employee Benefit Plan is in compliance with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to such Employee Benefit Plans, including but not limited to ERISA and the Code, and each Employee Benefit Plan has been administered in accordance with its terms;
(ii) with respect to the CompanySuperior's employee welfare benefit plans, any trust related to such ERISA Plans (which term shall have the meaning set forth in Section 3(3) of the ERISA with respect to employee benefit plans maintained or contributed to by the CompanySuperior, or any of its affiliates that currently cover employees and are subject to ERISA) has been determined to be tax-exempt by the IRS pursuant to Code (S) 501(c)(9) and nothing has occurred since occurred from the time of such determination to cause the loss of such trust's tax-exempt status. Each ERISA Plan intended to be qualified pursuant to Code (S) 401(a) and Code (S) 501(a) is qualified under Code (S) 401(a) and Code (S) 501(a) and has received a determination letter from the IRS covering the Tax Reform Act of 1986, as amended, that such ERISA Plans are so qualified and each trust established in connection with any such plan is exempt from federal income taxation and nothing (either in form or operation) has since occurred from the date of the last favorable determination letter to cause the loss of such ERISA Plans' or trusts' qualification;
(iii) all required reports and descriptions of such ERISA Plans (including without limitation the IRS Form 5500 Annual Return/Report, summary annual report and summary plan description) have been timely filed and distributed;
(iv) any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to such Employee Benefit Plans have been appropriately given;
(v) all required contributions for all periods ending prior to Closing (including periods from the first day of the current plan year to Closing) will be made to such Employee Benefit Plans prior to the Closing Date by the CompanySuperior;
(vi) the Company does Superior has not have taken any action directly or indirectly that obligates the Company Superior to institute, modify or change any Employee Benefit Plan, any change in the manner in which contributions are made or the basis on which such contributions are determined;
(vii) all insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to such Employee Benefit Plans for policy years or other applicable policy periods ending on or before Closing;
(viii) with respect to each such Employee Benefit Plan, the Company Superior and its affiliates have not engaged in any prohibited transactions (as defined in ERISA (S) 406 or Code (S) 4975), no penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) are pending, threatened or imminent against or with respect to such Employee Benefit Plans, the Company Superior, or any fiduciary (as defined in ERISA (S) 3(21)) of such Employee Benefit Plans (including any action, suit, grievance, arbitration or other manner of litigation, or claim regarding conduct which allegedly interferes with the attainment of rights under such plans), neither the Company Superior, nor any fiduciary with respect to such plans has any knowledge of any facts that would give rise to or could give rise to any penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim, and the Company Superior has not incurred any lien under Section 401(a)(29) or any material liability for any tax or civil penalty imposed by Section 4971 or 4976 of the Code or Section 502 of ERISA and no condition or set of circumstances exists that presents a risk to the Company Superior of incurring any such lien or liability;
(ix) no Employee Benefit Plan is (A) a "defined benefit" plan (as defined in Section 3(35) of ERISA, (B) a "multiemployer plan" within the meaning of Section 3(37) of ERISA, (C) a "multiple employer" or a "multiple employer welfare arrangement" within the meaning of Section 413(c) of the Code or Section 514(b)(6) of ERISA, respectively, or (D) a "welfare benefit fund" as defined in Section 419(e) of the Code;
(x) the Company Superior is not subject to any liability under Title IV of ERISA, including any withdrawal liability on behalf of a multiemployer plan;
(xi) none of the Company Superior or any of its members, managers, advisorsdirectors, officers, employees or any other fiduciary has any liability for a material breach of fiduciary responsibility imposed by ERISA for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such Employee Benefit Plans;
(xii) except as disclosed on Schedule 3.183.18(a), none of such Employee Benefit Plans has been completely or partially terminated;
(xiii) no current or former employee of the Company Superior will be entitled to any payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Employee Benefit Plan will be entitled to payment as a result of the transactions contemplated by this Agreement;
(xiv) there is no pending or threatened litigation, action, suit, proceeding or investigation against or involving such Employee Benefit Plans and, to the best knowledge of the CompanySuperior, there is no basis for any litigation, action, suit, proceeding or investigation; and
(xv) no Employee Benefit Plan provides medical, life or other welfare benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law). With respect to any contract or arrangement with an insurance company providing funding under any Employee Benefit Plan, there is no material liability for any retroactive rate adjustment. Except as disclosed on Schedule 3.183.18(a), the Company Superior has the right to amend or terminate its participation with respect to each Employee Benefit Plan. Each Employee Benefit Plan that is a "group health plan," as defined in Section 5000 of the Code has been operated in accordance with Section 4980B of the Code, Section 9801 and the secondary payor requirements of Section 1862(b) of the Social Security Act.
Appears in 1 contract
Samples: Stock Purchase Agreement (Superior Trucks & Auto Supply Inc)
Pension and Welfare Benefit Plans. With respect to the Employee --------------------------------- Benefit Plans and Terminated Employee Benefit Plans, each as described on Schedule 3.183.19:
(i) each Employee Benefit Plan is in compliance with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to such Employee Benefit Plans, including but not limited to ERISA and the Code, and each Employee Benefit Plan has been administered in accordance with its terms;
(ii) with respect to each of the Company's employee welfare benefit plans, any trust related to such and the ABS Subsidiaries' ERISA Plans (which term shall have the meaning set forth in Section 3(3) of the ERISA with respect to employee benefit plans maintained or contributed to by the Company, Company or any of its affiliates ABS Subsidiary that currently cover employees and are subject to ERISA) has been determined to be tax-exempt by the IRS pursuant to Code (S) 501(c)(9) and nothing has since occurred from the time of such determination to cause the loss of such trust's tax-exempt status. Each ERISA Plan that is intended to be qualified pursuant to Code (S) 401(a) and Code (S) 501(a) is qualified under Code (S) 401(a) and Code (S) 501(a) and has received a determination letter from the IRS covering the Tax Reform Act of 1986, as amended, that such ERISA Plans are so qualified and each trust established in connection with any such plan is exempt from federal income taxation and nothing (either in form or operation) has since occurred from the date of the last favorable determination letter to cause the loss of such ERISA Plans' or trusts' qualification;
(iii) all there has been no failure to timely file or distribute any required reports and descriptions report or description of such ERISA Plans (including without limitation the IRS Form 5500 Annual Return/Report, summary annual report and summary plan description) have been timely filed and distributed);
(iv) there has been no failure to give any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to such Employee Benefit Plans have been appropriately givenPlans;
(v) all required contributions for all periods ending prior to Closing (including periods from the first day of the current plan year to Closing) will be made to such Employee Benefit Plans prior to the Closing Date by the CompanyCompany or any ABS Subsidiary;
(vi) none of the Company does not have or the ABS Subsidiaries has taken any action directly or indirectly that obligates the Company to institute, modify or change any Employee Benefit Plan, any change in the manner in which contributions are made or the basis on which such contributions are determined;
(vii) all insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to such Employee Benefit Plans for policy years or other applicable policy periods ending on or before Closing;
(viii) with respect to each such Employee Benefit Plan, the Company and its affiliates have the ABS Subsidiaries are not engaged liable for excise taxes in connection with any prohibited transactions (as defined in ERISA (S) 406 or Code (S) 4975), ; no penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) are pending, threatened or imminent against or with respect to such Employee Benefit Plans, the Company Company, any ABS Subsidiary or any fiduciary (as defined in ERISA (S) 3(21)) of such Employee Benefit Plans (including any action, suit, grievance, arbitration or other manner of litigation, or claim regarding conduct which allegedly interferes with the attainment of rights under such plans), neither ) for which the Company nor any fiduciary with respect to such plans has or the ABS Subsidiaries could be liable; the Company does not have any knowledge of any facts that would give rise to or could give rise to any penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim, and none of the Company or the ABS Subsidiaries has not incurred any lien under Section 401(a)(29) or any material liability for any tax or civil penalty imposed by Section 4971 or 4976 of the Code or Section 502 of ERISA and no condition or set of circumstances exists that presents a risk to the Company or any ABS Subsidiary of incurring any such lien or liability;
(ix) except as disclosed on Schedule 3.19, no Employee Benefit Plan is (A) a "defined benefit" plan (as defined in Section 3(35) of ERISA, nor was any Terminated Employee Benefit Plan such a "defined benefit" plan, (B) a "multiemployer plan" within the meaning of Section 3(37) of ERISA, (C) a "multiple employer" or a "multiple employer welfare arrangement" within the meaning of Section 413(c) of the Code or Section 514(b)(63(40) of ERISA, respectively, or (D) a "welfare benefit fund" as defined in Section 419(e) of the Code;
(x) the Company is not subject to any liability under Title IV of ERISA, including including, without limitation, any withdrawal liability on behalf of a multiemployer plan;
(xi) none of the Company or the ABS Subsidiaries or any of its members, managers, advisorstheir directors, officers, employees or any other fiduciary has any liability for a material breach of fiduciary responsibility imposed by ERISA for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such Employee Benefit Plans;
(xii) except as disclosed on Schedule 3.183.19, none of such Employee Benefit Plans has been completely or partially terminatedterminated within the five years before Closing;
(xiii) except as disclosed on Schedule 3.19, no current or former employee of the Company or any ABS Subsidiary will be entitled to any payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Employee Benefit Plan will be entitled to payment as a result of the transactions contemplated by this Agreement;
(xiv) there is no pending or threatened litigation, action, suit, proceeding audit or investigation against or involving such Employee Benefit Plans and(other than routine claims for benefits), to the best knowledge of the Company, there is and no basis for any litigation, action, suit, proceeding or investigation; andqualification
(xv) no Employee Benefit Plan provides medical, life or other welfare benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law). With respect to any contract or arrangement with an insurance company providing funding under any Employee Benefit Plan, there is no material liability for any retroactive rate adjustment. Except as disclosed on Schedule 3.183.19, each of the Company and the ABS Subsidiaries has the right to amend or terminate its their participation with respect to each Employee Benefit Plan. Each Employee Benefit Plan that is a "group health plan," as defined in Section 5000 of the Code has been operated in accordance with Section 4980B of the Code, Section 9801 and the secondary payor requirements of Section 1862(b) of the Social Security Act; and
(xvi) No amounts have been accumulated as reserves or for the purpose of prefunding medical expenses under the Xxxxxxxx Pension Administration, Inc. Flexible Benefits Trust ("Flexible Benefits Trust"), and the Company has not taken a tax deduction under Code sections 419, 419A or any other Code provision with respect to any such reserves or prefunded amounts. The Company has not treated the Flexible Benefits Trust as tax exempt under Code section 501(a) and has no tax liability or any other liability for noncompliance with any Laws or governmental regulations with respect to its participation in the Flexible Benefits Trust.
Appears in 1 contract
Pension and Welfare Benefit Plans. With respect to the Employee --------------------------------- Benefit Plans and Terminated Employee Benefit Plans, each as described on Schedule 3.18:3.19(a):
(i) each Employee Benefit Plan is in compliance with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to such Employee Benefit PlansPlan, including but not limited to ERISA and the Code, and each Employee Benefit Plan has been administered in accordance with its terms;
(ii) with respect to the Company's any Employee Benefit Plan that is an employee welfare benefit plans, any trust related to such ERISA Plans plan (which term shall have the meaning set forth in Section 3(3) of the ERISA with respect to employee benefit plans maintained or contributed to by the CompanyERISA), or any of its affiliates that currently cover employees and are subject to ERISA) trust related thereto has been determined to be tax-exempt by the IRS pursuant to Code (S) ss. 501(c)(9) and nothing has occurred since occurred from the time of such determination to cause the loss of such trust's tax-exempt status. Each ERISA Employee Benefit Plan intended to be qualified pursuant to Code (S) ss. 401(a) and Code (S) ss. 501(a) is qualified under Code (S) ss. 401(a) and Code (S) ss. 501(a) and has received a favorable determination letter from the IRS covering the Tax Reform Act of 1986, as amended, that such ERISA Plans are so qualified and each trust established in connection with any such plan is exempt from federal income taxation and nothing (either in form or operation) has since occurred from the date of the last favorable determination letter to cause the loss of such ERISA Plans' or trusts' qualification;
(iii) all required reports and descriptions of such ERISA Plans disclosures (including without limitation the IRS Form 5500 Annual Return/Report, summary annual report and summary plan description) with respect to each Employee Benefit Plan have been timely filed and distributed;
(iv) any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to such Employee Benefit Plans have been appropriately given;
(v) all required contributions for all periods ending prior to Closing (including periods from the first day of the current plan year to Closing) will be made to such Employee Benefit Plans prior to the Closing Date by the CompanyOklahoma Truck Supply;
(vi) the Company does Oklahoma Truck Supply has not have taken any action directly or indirectly that obligates the Company Oklahoma Truck Supply to institute, modify or change any Employee Benefit Plan, any change in the manner in which contributions are made or the basis on which such contributions are determined;
(vii) all insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to such Employee Benefit Plans for policy years or other applicable policy periods ending on or before Closing;
(viii) with respect to each such Employee Benefit Plan, the Company and neither Oklahoma Truck Supply, its affiliates affiliates, nor any fiduciary (as defined in ERISA ss. 3(21)) of any Employee Benefit Plan have not engaged in any prohibited transactions (as defined in ERISA (S) ss. 406 or Code (S) ss. 4975), ; no penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigationarbitration, investigation, audit, litigation or claim (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) are pending, threatened or imminent against or with respect to such any Employee Benefit Plans, the Company Oklahoma Truck Supply, or any fiduciary (as defined in ERISA (S) ss. 3(21)) of any such Employee Benefit Plans Plan (including without limitation any action, suit, grievance, arbitration or other manner of litigation, or claim regarding conduct which allegedly interferes with the attainment of rights under such plans); neither Oklahoma Truck Supply, neither the Company nor any fiduciary with respect to such plans any Employee Benefit Plan has any knowledge of any facts that would give rise to or could give rise to any penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim, ; and the Company Oklahoma Truck Supply has not incurred any lien under Section 401(a)(29) or any material liability for any tax or civil penalty imposed by Section 4971 or 4976 of the Code or Section 502 of ERISA and no condition or set of circumstances exists that presents a risk to the Company Oklahoma Truck Supply of incurring any such lien or liability;
(ix) no Employee Benefit Plan is (A) a "defined benefit" plan (as defined in Section 3(35) of ERISA, (B) a "multiemployer plan" within the meaning of Section 3(37) of ERISA, (C) a "multiple employer" or a "multiple employer welfare arrangement" within the meaning of Section 413(c) of the Code or Section 514(b)(6) of ERISA, respectively, or (D) a "welfare benefit fund" as defined in Section 419(e) of the Code;
(x) the Company neither Oklahoma Truck Supply nor any of its affiliates is not subject to any liability under Title IV of ERISA, including without limitation any withdrawal liability on behalf of a multiemployer plan;
(xi) none of the Company Oklahoma Truck Supply or any of its members, managers, advisorsdirectors, officers, employees or any other fiduciary of any Employee Benefit Plan has any liability for a material breach of fiduciary responsibility imposed by ERISA for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such Employee Benefit Plans;
(xii) except as disclosed on Schedule 3.18, none of such Employee Benefit Plans has been completely or partially terminated;
(xiii) no current or former employee of the Company Oklahoma Truck Supply will be entitled to any payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Employee Benefit Plan will be entitled to payment as a result of the transactions contemplated by this Agreement;
(xiv) there is no pending or threatened litigation, action, suit, proceeding or investigation against or involving such Employee Benefit Plans and, to the best knowledge of the Company, there is no basis for any litigation, action, suit, proceeding or investigation; and
(xvxiii) no Employee Benefit Plan provides medical, life or other welfare benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law). With respect to any contract or arrangement with an insurance company providing funding under any Employee Benefit Plan, there is no material liability for any retroactive rate adjustment. Except as disclosed on Schedule 3.183.19(a), the Company Oklahoma Truck Supply has the right to amend or to terminate its participation with respect to each Employee Benefit Plan. Each Employee Benefit Plan that is a "group health plan," as defined in Section 5000 of the Code has been operated in accordance with Section 4980B of the Code, Section 9801 and the secondary payor requirements of Section 1862(b) of the Social Security Act.
Appears in 1 contract
Pension and Welfare Benefit Plans. With respect to the Employee --------------------------------- Benefit Plans and Terminated Employee Benefit Plans, each as described on Schedule 3.18:3.19(a):
(i) each Employee Benefit Plan is in compliance with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to such Employee Benefit Plans, including but not limited to ERISA and the Code, and each Employee Benefit Plan has been administered in accordance with its terms;
(ii) with respect to the Company's any Employee Benefit Plan which is an employee welfare benefit plans, any trust related to such ERISA Plans plan (which term shall have the meaning set forth in Section 3(3) of the ERISA with respect to employee benefit plans maintained or contributed to by the CompanyERISA), or any of its affiliates that currently cover employees and are subject to ERISA) trust related thereto has been determined to be tax-exempt by the IRS pursuant to Code (S) 501(c)(9) and nothing has occurred since occurred from the time of such determination to cause the loss of such trust's tax-exempt status. Each ERISA Employee Benefit Plan intended to be qualified pursuant to Code (S) 401(a) and Code (S) 501(a) is qualified under Code (S) 401(a) and Code (S) 501(a) and has received a favorable determination letter from the IRS covering the Tax Reform Act of 1986, as amended, that such ERISA Plans are so qualified and each trust established in connection with any such plan is exempt from federal income taxation and nothing (either in form or operation) has since occurred from the date of the last favorable determination letter to cause the loss of such ERISA Plans' or trusts' qualification;
(iii) all required reports and descriptions of such ERISA Plans disclosures (including without limitation the IRS Form 5500 Annual Return/Report, summary annual report and summary plan description) with respect to each Employee Benefit Plan have been timely filed and distributed;
(iv) any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to such Employee Benefit Plans have been appropriately given;
(v) all required contributions for all periods ending prior to Closing (including periods from the first day of the current plan year to Closing) will be made to such Employee Benefit Plans prior to the Closing Date by the CompanyWheels and Brakes;
(vi) the Company does Wheels and Brakes has not have taken any action directly or indirectly that obligates the Company Wheels and Brakes to institute, modify or change any Employee Benefit Plan, any change in the manner in which contributions are made or the basis on which such contributions are determined;
(vii) all insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to such Employee Benefit Plans for policy years or other applicable policy periods ending on or before Closing;
(viii) with respect to each such Employee Benefit Plan, the Company neither Wheels and Brakes, its affiliates affiliates, nor any fiduciary (as defined in ERISA (S) 3(21)) of any Employee Benefit Plan have not engaged in any prohibited transactions (as defined in ERISA (S) 406 or Code (S) 4975), ; no penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigationarbitration, investigation, audit, litigation or claim (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) are pending, threatened or imminent against or with respect to such any Employee Benefit Plans, the Company Wheels and Brakes, or any fiduciary (as defined in ERISA (S) 3(21)) of any such Employee Benefit Plans Plan (including without limitation any action, suit, grievance, arbitration or other manner of litigation, or claim regarding conduct which allegedly interferes with the attainment of rights under such plans); neither Wheels and Brakes, neither the Company nor any fiduciary with respect to such plans any Employee Benefit Plan has any knowledge of any facts that would give rise to or could give rise to any penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim, ; and the Company Wheels and Brakes has not incurred any lien under Section 401(a)(29) or any material liability for any tax or civil penalty imposed by Section 4971 or 4976 of the Code or Section 502 of ERISA and no condition or set of circumstances exists that presents a risk to the Company Wheels and Brakes of incurring any such lien or liability;
(ix) no Employee Benefit Plan is (A) a "defined benefit" plan (as defined in Section 3(35) of ERISA, (B) a "multiemployer plan" within the meaning of Section 3(37) of ERISA, (C) a "multiple employer" or a "multiple employer welfare arrangement" within the meaning of Section 413(c) of the Code or Section 514(b)(6) of ERISA, respectively, or (D) a "welfare benefit fund" as defined in Section 419(e) of the Code;
(x) the Company neither Wheels and Brakes nor any of its affiliates is not subject to any liability under Title IV of ERISA, including without limitation any withdrawal liability on behalf of a multiemployer plan;
(xi) none of the Company Wheels and Brakes or any of its members, managers, advisorsdirectors, officers, employees or any other fiduciary of any Employee Benefit Plan has any liability for a material breach of fiduciary responsibility imposed by ERISA for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such Employee Benefit Plans;
(xii) except as disclosed on Schedule 3.183.19(a), none of such Employee Benefit Plans has been completely or partially terminated, except that the Wheels and Brakes, Inc. Employee Stock Ownership Plan ("ESOP") has been validly terminated prior to Closing, and such termination, and all actions taken to effectuate or otherwise related to such termination, comply in all respects with the terms of the ESOP and with ERISA, the Code and other applicable law;
(xiii) no current or former employee of the Company Wheels and Brakes will be entitled to any payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Employee Benefit Plan will be entitled to payment as a result of the transactions contemplated by this Agreement;
(xiv) there is no pending or threatened litigation, action, suit, proceeding or investigation against or involving such Employee Benefit Plans and, to the best knowledge of the Company, there is no basis for any litigation, action, suit, proceeding or investigation; and
(xvxiv) no Employee Benefit Plan provides medical, life or other welfare benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law). With respect to any contract or arrangement with an insurance company providing funding under any Employee Benefit Plan, there is no material liability for any retroactive rate adjustment. Except as disclosed on Schedule 3.183.19(a), the Company Wheels and Brakes has the right to amend or to terminate its participation with respect to each Employee Benefit Plan. Each Employee Benefit Plan that is a "group health plan," as defined in Section 5000 of the Code has been operated in accordance with Section 4980B of the Code, Section 9801 and the secondary payor requirements of Section 1862(b) of the Social Security Act.
Appears in 1 contract
Pension and Welfare Benefit Plans. With respect to the Tisco --------------------------------- Employee --------------------------------- Benefit Plans and Tisco Terminated Employee Benefit Plans, each as described on Schedule 3.18:3.18(a)(i), and with respect to the Redding Employee Benefit Plans and Redding Terminated Employee Benefit Plans, each as described on Schedule 3.18(a)(ii):
(i) each Tisco and Redding Employee Benefit Plan is in compliance with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to such Tisco and Redding Employee Benefit Plans, including but not limited to ERISA and the Code, and each Tisco and Redding Employee Benefit Plan has been administered in accordance with its terms;
(ii) with respect to the CompanyTisco's and Xxxxxxx'x employee welfare benefit plans, as applicable, any trust related to such ERISA Plans (which term shall have the meaning set forth in Section 3(3) of the ERISA with respect to employee benefit plans maintained or contributed to by the CompanyTisco or Redding, as applicable, or any of its their respective affiliates that currently cover employees and are subject to ERISA) has been determined to be tax-exempt by the IRS pursuant to Code (S) 501(c)(9) and nothing has occurred since occurred from the time of such determination to cause the loss of such trust's tax-exempt status. Each ERISA Plan intended to be qualified pursuant to Code (S) 401(a) and Code (S) 501(a) is qualified under Code (S) 401(a) and Code (S) 501(a) and has received a determination letter from the IRS covering the Tax Reform Act of 1986, as amended, that such ERISA Plans are so qualified and each trust established in connection with any such plan is exempt from federal income taxation and nothing (either in form or operation) has since occurred from the date of the last favorable determination letter to cause the loss of such ERISA Plans' or trusts' qualification;
(iii) all required reports and descriptions of such ERISA Plans (including without limitation the IRS Form 5500 Annual Return/Report, summary annual report and summary plan description) have been timely filed and distributed;
(iv) any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to such Tisco and Redding Employee Benefit Plans have been appropriately given;
(v) all required contributions for all periods ending prior to Closing (including periods from the first day of the current plan year to Closing) will be made to such Tisco and Redding Employee Benefit Plans prior to the Closing Date by the CompanyTisco or Redding, as applicable;
(vi) the Company does Tisco or Redding, as applicable, has not have taken any action directly or indirectly that obligates the Company Tisco or Redding, as applicable, to institute, modify or change any Tisco or Redding Employee Benefit Plan, any change in the manner in which contributions are made or the basis on which such contributions are determined;
(vii) all insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to such Tisco and Redding Employee Benefit Plans for policy years or other applicable policy periods ending on or before Closing;
(viii) with respect to each such Tisco and Redding Employee Benefit Plan, the Company Tisco or Redding, as applicable, and its their respective affiliates have not engaged in any prohibited transactions (as defined in ERISA (S) 406 or Code (S) 4975), no penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) are pending, threatened or imminent against or with respect to such Tisco and Redding Employee Benefit Plans, the Company Tisco or Redding, as applicable, or any respective fiduciary (as defined in ERISA (S) 3(21)) of such Tisco and Redding Employee Benefit Plans (including any action, suit, grievance, arbitration or other manner of litigation, or claim regarding conduct which allegedly interferes with the attainment of rights under such plans); neither Tisco or Redding, neither the Company as applicable, nor any respective fiduciary with respect to such plans has any knowledge of any facts that would give rise to or could give rise to any penalty, fine, tax, action, suit, grievance, arbitration or other manner of litigation, or claim, and the Company Tisco or Redding, as applicable, has not incurred any lien under Section 401(a)(29401 (a)(29) or any material liability for any tax or civil penalty imposed by Section 4971 or 4976 of the Code or Section 502 of ERISA and no condition or set of circumstances exists that presents a risk to the Company Tisco or Redding, as applicable, of incurring any such lien or liability;
(ix) no Tisco or Redding Employee Benefit Plan is (A) a "defined benefit" plan (as defined in Section 3(35) of ERISA, nor was any Terminated Employee Benefit Plan such a "defined benefit" plan, (B) a "multiemployer plan" within the meaning of Section 3(37) of ERISA, (C) a "multiple employer" or a "multiple employer welfare arrangement" within the meaning of Section 413(c) of the Code or Section 514(b)(63(40) of ERISA, respectively, or (D) a "welfare benefit fund" as defined in Section 419(e) of the Code;
(x) the Company Tisco or Redding, as applicable, is not subject to any liability under Title IV of ERISA, including without limitation any withdrawal liability on behalf of a multiemployer plan;
(xi) none of the Company Tisco or Redding, as applicable, or any of its members, managers, advisorstheir respective directors, officers, employees or any other fiduciary has any liability for a material breach of fiduciary responsibility imposed by ERISA for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such Tisco and Redding Employee Benefit Plans;
(xii) except as disclosed on Schedule 3.183.18(a)(i) or Schedule 3.1 8(a)(ii), none of such Tisco and Redding Employee Benefit Plans has been completely or partially terminated;
(xiii) no current or former employee of the Company Tisco or Redding, as applicable, will be entitled to any payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any Tisco or Redding Employee Benefit Plan as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Tisco or Redding Employee Benefit Plan will be entitled to payment as a result of the transactions contemplated by this Agreement;
(xiv) there is no pending or threatened litigation, action, suit, proceeding investigation or investigation audit against or involving such Tisco and Redding Employee Benefit Plans and, to the best knowledge of the Company, there is no basis for by any litigation, action, suit, proceeding governmental agency or investigationother third party; and
(xv) no Tisco or Redding Employee Benefit Plan provides medical, life or other welfare benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law). With respect to any contract or arrangement with an insurance company providing funding under any Tisco or Redding Employee Benefit Plan, there is no material liability for any retroactive rate adjustment. Except as disclosed on Schedule 3.183.18(a)(i) or Schedule 3.18(a)(ii), the Company Tisco or Redding, as applicable, has the right to amend or terminate its their participation with respect to each Tisco and Redding Employee Benefit Plan. Each Tisco and Redding Employee Benefit Plan that is a "group health plan," as defined in Section 5000 of the Code has been operated in accordance with Section 4980B of the Code, Section 9801 and the secondary payor requirements of Section 1862(b) of the Social Security Act.
Appears in 1 contract
