Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter, opinion, notification or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans. (e) Neither the execution of this Agreement nor the consummation of any of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under Section 4980B of the Internal Revenue Code. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 2 contracts

Sources: Merger Agreement (Wellcare Group Inc), Merger Agreement (Wellcare Management Group Inc)

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) 2.13 of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to Sellers Disclosure Schedule identifies each Plan ~~currently~~ sponsored or maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates ~~to the PBGC~~ or to which Company or any ~~"multi-employer Plan"~~ of its ERISA Affiliates contributes. (b) Except as ~~defined~~ set forth in Section ~~3(37~~2.13 of the Sellers Disclosure Schedule with respect to each Plan required to be listed in Section 2.13 of the Sellers Disclosure Schedule: (i) each Plan has been administered in material compliance with its terms and is in material compliance with the applicable provisions of ERISA ~~on account of any withdrawal therefrom~~ (including, without limitation, the prohibited transaction provisions thereof), the Internal Revenue Code and other applicable Laws; (ii) there are no ~~such Plan has been terminated within the last six years other than in accordance with ERISA~~ inquiries or ~~at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder~~proceedings pending or, ~~including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior~~ to the ~~Closing~~knowledge of Sellers, ~~shall not result in~~ threatened by the IRS, the U.S. Department of Labor, the PBGC, or any ~~such withdrawal~~ participant or ~~other liability~~ beneficiary with respect to the ~~Company or either Company Subsidiary under any applicable Laws.~~ Plans; (ciii) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each each Pension Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified plan ~~under~~ within the meaning of Section 401(a) of the Internal Revenue Code has received a favorable determination ~~letter, opinion, notification or advisory letter~~ from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to its qualified status or is within the ~~qualification of each such Plan. All~~ remedial amendment period (as defined in Section 401(b) of the Internal Revenue Code taking into account any pronouncements of the IRS relating to such period) for making any required changes; (iv) each Plan may, without liability, be amended, terminated or otherwise discontinued, except as specifically provided by federal law, (v) no Plan provides medical benefits to any Person who is not a current employee of Company ~~Plans have been administered~~ (other than dependents of current employees) or any of its ERISA Affiliates and ~~maintained in substantial compliance~~ neither Company nor any of its ERISA Affiliates is contractually or otherwise obligated to provide any Person who is not a current employee of Company (other than dependents of current employees) with ~~their terms~~medical benefits, ~~ERISA,~~ other than continuation coverage as required under section 4980B of the Internal Revenue Code and ~~all~~ Part 6 of Subtitle B of Title I of ERISA (“COBRA”) or other applicable ~~Laws. All~~ law; (vi) Company has made or provided for all contributions required ~~to be made to each of the Company Plans~~ under the terms of ~~that Plan, ERISA,~~ such Plans and any applicable Laws for all periods through the Closing Date; (vii) there have been no “prohibited transactions” (as described in Section 4975 of the Internal Revenue Code or ~~any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter~~ in Part 4 of Subtitle B of ~~Chapter 1~~ Title I of ERISA) involving any Plan; (viii) there has been no material violation of the “continuation coverage requirements” of COBRA with respect to any Welfare Plan to which such continuation coverage requirements apply; and (ix) there has been no material violation of the obligations imposed by Section 9801 of the Internal Revenue Code and Part 7 of Subtitle B of Title I of ERISA with respect to any Welfare Plan which is a group health plan (as defined in ~~material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under~~ Section ~~412(n~~5000(b)(1) of the Internal Revenue Code or ~~Sections 302(f) or 4068~~ Part 6 of Subtitle B of Title I of ERISA~~. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans~~. (ec) Neither ~~the execution of this Agreement~~ Company nor ~~the consummation of~~ any of ~~the transactions contemplated hereby (whether alone~~ its ERISA Affiliates maintains or ~~upon the occurrence of any additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates~~ has ever maintained a Pension Plan which is subject to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, minimum funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of ~~the Health Insurance Portability and Accountability Act~~ Part 3 of ~~1996 and the regulations thereunder, and none~~ Subtitle B of ~~the Company, either Company Subsidiary~~ Title I of ERISA or ~~any of their respective ERISA Affiliates has incurred any liability under~~ subject to Section ~~4980B~~ 412 of the Internal Revenue Code. (d) Neither Company nor any of its ERISA Affiliates has ever maintained or been obligated to contribute to any multiemployer plan, as defined in Section 3(37) of ERISA. (e) Neither Company nor any of its ERISA Affiliates is bound by any collective bargaining agreement or legally binding arrangement to maintain or contribute to any Plan. (f) Complete and correct copies of the following documents have been delivered by Company or Sellers to Connecture: (i) all current plan documents and insurance contracts (if any), and amendments thereto, with respect to each of the Plans, (ii) for each of the most recently ended three plan years, all IRS Form 5500 series forms (and any financial statements and other schedules attached thereto) filed with respect to any Plan, (iii) the most recent IRS determination letter for each Pension Plan (if any), and (iv) all current summary plan descriptions and subsequent summaries of material modifications with respect to each of the Plans subject to ERISA. (g) ~~Other than routine claims for benefits under~~ Except as set forth in Section 2.13 of the Sellers Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not, alone or together with any other event (and except that the Company ~~Plans, there are no pending, or,~~ is obligated to pay accrued and unused vacation pay to terminated employees in the ~~knowledge~~ amounts set forth in Section 2.13 of the ~~Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or~~ Sellers Disclosure Schedule and except that the Company ~~or either Company Subsidiary as the employer or sponsor under~~ has generally paid two weeks’ severance pay to terminated employees), (i) entitle any ~~such Plan~~Person to severance pay, ~~with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan~~ unemployment compensation or any other ~~person whomsoever. The Company knows~~ payment, or (ii) accelerate the time of ~~any reasonable basis for~~ payment or vesting, or increase the amount of compensation due to any such ~~claim~~Person. (h) The participant and beneficiary records with respect to each Plan are in the custody of Company (or an agent of Company who must, ~~lawsuit~~upon demand, ~~dispute~~provide such records to Company within a reasonable period of time), ~~action or controversy~~and such records accurately state in all material respects the benefits to which all participants and beneficiaries under such Plan are entitled.

Appears in 2 contracts

Sources: Stock Purchase Agreement (Connecture Inc), Stock Purchase Agreement (Connecture Inc)

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) ~~neither~~ none of the ~~Company nor either Company Subsidiary~~ Companies currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) ~~neither~~ none of the ~~Company nor either Company Subsidiary~~ Companies is a party to any collective bargaining agreement, and (vii) ~~neither~~ none of the ~~Company nor either Company Subsidiary~~ Companies has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which ~~Parent~~ Buyer will be required to make any contributions or with respect to which ~~Parent~~ Buyer shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of ~~the~~ any Company ~~or either Company Subsidiary~~ or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that ~~Parent~~ Buyer continues after the Closing, or (B) which ~~Parent~~ Buyer or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the ~~Company or either Company Subsidiary~~ Companies with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by ~~the Company, either~~ any Company ~~Subsidiary~~ or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the ~~Company or either Company Subsidiary~~Companies, ~~the~~ each Company has delivered to ~~Parent~~ Buyer true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the ~~Effective Time~~Closing Date, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the ~~Effective Time~~ Closing Date in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to ~~the~~ any Company ~~or either Company Subsidiary~~ under any applicable Laws. (c) ~~Neither~~ None of the ~~Company nor either Company Subsidiary~~ Companies is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither ~~the~~ any Company nor ~~either Company Subsidiary~~ any Stockholder has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by ~~the~~ any Company ~~or either Company Subsidiary~~ which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," ", as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by ~~the Company, either~~ any Company ~~Subsidiary~~ or any ~~of their respective~~ ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by ~~the Company, either~~ any Company ~~Subsidiary~~ or any ~~of their respective~~ ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. ~~None of the~~ Neither any Company, ~~either Company Subsidiary,~~ nor any of ~~their respective~~ ERISA ~~Affiliates or~~ Affiliate, nor any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has ~~incurred~~ any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, ~~none of the Company, either~~ neither any Company ~~Subsidiary or~~ nor any ~~of their respective~~ ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter, opinion, notification or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of ~~the Company, either~~ any Company ~~Subsidiary~~ or any ~~of their respective~~ ERISA ~~Affiliates~~ Affiliate under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans. (e) Neither the execution of this Agreement nor the consummation of any of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of ~~Parent~~ Buyer or its Affiliates to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of ~~Parent~~Buyer, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a as sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, ~~shareholder~~stockholder, contractor, or consultant of ~~the~~ any Company ~~or either Company Subsidiary~~ or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of ~~Parent~~ Buyer or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the ~~Effective Time~~Closing Date, nor would there be any such liability if such insurance policy were terminated as of the ~~Effective Time~~Closing Date, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the ~~Company~~Companies and the Stockholders, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, ~~the Company,~~ each Company ~~Subsidiary~~ and each ERISA Affiliate ~~has~~ have complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and ~~none of the Company, either~~ neither any Company ~~Subsidiary or~~ nor any ~~of their respective~~ ERISA ~~Affiliates~~ Affiliate has incurred any liability under Section 4980B of the Internal Revenue Code. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the ~~Company~~Companies and the Stockholders, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the ~~Company or either Company Subsidiary~~ Companies as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. ~~The~~ No Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Purchase Agreement (Wellcare Group Inc)

Plans; ERISA. (a) ~~Except as disclosed on Schedule 2.18, (i) neither~~ All of the Plans of the Company ~~nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in~~ are listed on Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e2.14(a) of the ~~Internal Revenue Code~~Company Disclosure Schedule. Copies of all such Plans have been made available to the Purchaser. To the extent applicable, ~~or an organization described in Sections 501(c)(9) or 501(c)(20)~~ the Plans comply with the requirements of the ~~Internal Revenue Code~~Employee Retirement Income Security Act of 1974, ~~(vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement~~as amended, and the rules and regulations promulgated thereunder (~~vii~~“ERISA”) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and ~~(VI~~except as disclosed on Section 2.14(a) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company ~~Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA~~Disclosure Schedule, ~~with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such~~ no Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified ~~plan~~ under Section 401(a) of the Internal Revenue Code ~~has received a favorable determination letter, opinion, notification~~ or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section ~~412(n~~501(a) of the Internal Revenue ~~Code~~ Code. No Plan is covered by Title IV of ERISA or ~~Sections 302(f) or 4068~~ Section 412 of the Internal Revenue Code. The Company has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. ~~The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date~~ Neither the Company nor any officer or director has incurred any Liability or penalty under ~~each~~ Section 4971 through 4980E of the ~~Company Plans. (e) Neither the execution~~ Code or Title 1 of ~~this Agreement nor the consummation of any~~ ERISA. None of the ~~transactions contemplated hereby (whether alone~~ Plans promises or ~~upon the occurrence of any additional~~ provides retiree medical or ~~further acts or events) will (i) result in any obligation or liability (with respect to accrued~~ other retiree welfare benefits ~~or otherwise) on the part of Parent or its Affiliates to the PBGC,~~ to any ~~Plan~~person except as required by applicable Law, ~~or to any present or former employee~~including but not limited to, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as ~~amended ("COBRA")~~amended. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable ~~COBRA regulations~~ to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, the Company is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former director, officer, employee or consultant of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the ~~applicable~~ Company under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) increase any benefits otherwise payable under any Plan or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company has complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company and its respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act ~~of 1996~~ and ~~the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under~~ other applicable health insurance requirements in Section ~~4980B~~ 4980D of the Internal Revenue ~~Code~~Code and Sections 701 through 734 of ERISA. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Stock Purchase Agreement (Widepoint Corp)

Plans; ERISA. (a) ~~Except as disclosed~~ All of the Plans are listed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e3.11(a) of the ~~Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the~~ Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such datesDisclosure Schedule. (b) ~~The present value of all accrued benefits~~ Any Plan intended to be qualified under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions Section 401(a) of the Internal Revenue Code and ~~ERISA, and each such Plan shall~~ the trust(s) maintained pursuant thereto intended to be ~~capable of being terminated as~~ exempt from federal income taxation under Section 501 of the ~~Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that~~ Internal Revenue Code is ~~subject to Title IV of ERISA,~~ either (i) ~~no amount is due~~ subject to a current favorable determination letter from the Internal Revenue Service regarding such qualification, or ~~owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and~~ (ii) no based upon a master and prototype or volume submitter form, and the sponsor of such ~~Plan~~ form has ~~been terminated within~~ received a current advisory opinion from the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior Internal Revenue Service as to the ~~Closing~~form upon which each Company is entitled to rely under applicable Internal Revenue Service procedures. To the knowledge of Seller, ~~shall not result in any such withdrawal or other liability~~ no event has occurred with respect to any Plan which will or could reasonably give rise to the ~~Company or either Company Subsidiary under~~ disqualification of any ~~applicable Laws~~such Plan. (c) ~~Neither the~~ No Company nor ~~either Company Subsidiary~~ any of its respective ERISA Affiliates currently sponsors, maintains or contributes to (or is ~~subject~~ obligated to contribute to) or has, within the last six (6) years, sponsored, maintained, contributed to, or been obligated to contribute to, or had any ~~material liability, tax or penalty whatsoever to any person or agency whomsoever~~ Liability with respect to: (i) a “defined benefit plan” (as ~~a result of engaging~~ defined in ~~a prohibited transaction under~~ ERISA ~~or the~~ Section 3(35) and Internal Revenue ~~Code~~Code Section 414(j)), (ii) a “multiemployer plan” (as defined in ERISA Sections 3(37) and 4001(a)(3)) or (iii) a “multiple employer plan” (meaning a plan sponsored by more than one employer within the meaning of ERISA Sections 4063 or 4064 or Internal Revenue Code Section 413(c)). No Company has incurred, and ~~neither~~ to the knowledge of Seller, there are no circumstances under which any of them could reasonably incur any Liability under Title IV of ERISA. No Company nor ~~either Company Subsidiary~~ any ERISA Affiliate has incurred any ~~knowledge of any circumstances which reasonably might result in any such material liability, tax~~ Liability or ~~penalty, including but not limited to, a~~ penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C 4971 through 4980E of the Internal Revenue ~~Code,~~ Code or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) I of ERISA. (d) None of the ~~current Company~~ Plans promises or provides retirement, medical, life insurance or other welfare benefits subsequent to termination of employment to any person except as required by Internal Revenue Code Section 4980B and ERISA ~~Affiliate Plans~~ Sections 601 to 608 and any similar state Laws and at the sole expense of the participant or such participant’s spouse or dependents. (e) To the knowledge of Seller, each Plan has been maintained, funded and administered in all material respects in compliance with its terms and with the requirements prescribed by any and all Laws, including ERISA and the Internal Revenue Code, which are applicable to such Plans. Neither Seller nor any ~~trust created thereunder~~ Company has received any notice from any Governmental Authority questioning or challenging such compliance. To the knowledge of Seller, neither any Plan nor any Company is subject to any Tax or penalty under the Patient Protection and Affordable Care Act. (f) Within the past three (3) complete calendar years and the current calendar year, no Plan is or has been under audit or is or has been the subject of an investigation, prosecution, inquiry, hearing or other proceeding by the Internal Revenue Service, the Department of Labor or other Governmental Authority. To the knowledge of Seller, no Plan is the subject of a threatened investigation, prosecution, inquiry, hearing or other proceeding by the Internal Revenue Service, the Department of Labor or other Governmental Authority. (g) No Action (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought or is pending, or to the knowledge of Seller, has been threatened with respect to any ~~"accumulated funding deficiency"~~ Plan. (h) Neither Seller, nor to the knowledge of Seller, any ERISA Affiliate, and nor any administrator or fiduciary of any Plan (or any agent of any of the foregoing) has engaged in any transaction, or acted or failed to act in any manner, which could subject any Company to any Liability (by indemnity or otherwise) for breach of any fiduciary, co-fiduciary or other duty under ERISA. No “party in interest” (as ~~such term is~~ defined in Section ~~412~~ 3(14) of ERISA) or “disqualified person” (as defined in Internal Revenue Code Section 4975) of any Plan has engaged in any nonexempt “prohibited transaction” (as defined in Internal Revenue Code Section 4975 or ERISA Section 406) with respect to which the Company has any Liability. (i) No Company maintains a non-qualified deferred compensation plan (as defined in Section 409A(d)(1) of the Internal Revenue Code~~, whether or not waived,~~ ). (j) Except as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified plan under Section 401(aset forth on Schedule 3.11(j) of the ~~Internal Revenue Code has received a favorable determination letter~~Seller Disclosure Schedule, ~~opinion~~neither the execution, ~~notification~~ delivery or ~~advisory letter from~~ the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans. (e) Neither the execution performance of this Agreement nor the consummation of ~~any of~~ the ~~transactions contemplated hereby~~ Transactions (~~whether~~ alone or ~~upon the occurrence of~~ in conjunction with any ~~additional or further acts or events~~other event) will or could (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting ~~(except with respect to termination of any qualified retirement plan),~~ or increase the ~~amount~~amount of, or trigger any funding of, compensation or benefits under any Plan or otherwise; (ii) result in any limitation on the right of a Company to amend, merge, terminate or receive a reversion of assets from any ~~compensation theretofore~~ Plan or ~~thereafter due~~ related trust; (iii) entitle any current or ~~granted to any employee~~former director, officer, ~~director~~manager, ~~shareholder~~employee, ~~contractor,~~ contractor or consultant of ~~the~~ any Company ~~or either Company Subsidiary~~ to severance pay, termination pay or any ~~of their dependents. With respect to~~ other similar payment, right or benefit; (iv) result in any ~~insurance policy which provides~~payment, right or ~~has provided, funding for benefits under any Company Plan,~~ benefit that would (A) ~~there is and will~~ not be ~~no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as~~ deductible under Section 280G of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and Internal Revenue Code or (B) to could result in any excise tax on any “disqualified individual” (within the ~~knowledge~~ meaning of Section 280G of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (fInternal Revenue Code) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions under Section 4999 of the ~~Consolidated Omnibus Budget Reconciliation Act~~ Internal Revenue Code. No Company has any obligation to gross-up or reimburse any current or former director, officer, manager, employee, contractor or consultant of ~~1985~~any Company for any Taxes or related interest or penalties incurred by such individual, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability including under Section ~~4980B~~ 4999, 409A or 105(h) of the Internal Revenue Code. (gk) ~~Other than routine claims for benefits under the Company Plans~~With respect to each Plan, ~~there are no pending, or,~~ prior to the ~~knowledge~~ Closing, Seller has provided to Purchaser accurate and complete copies, if applicable, of (or if not contained in a written document, a description of): (i) all Plan documents and agreements and related trust agreements or insurance or annuity contracts; (ii) the ~~Company~~most recent annual and periodic accounting of Plan assets; (iii) current summary plan descriptions, ~~threatened~~where applicable; (iv) the most recent Internal Revenue Service annual report (Form 5500 series); (v) the most recent Internal Revenue Service determination, ~~Actions~~ opinion or ~~Proceedings involving such Plans~~advisory letter and (vi) for the three (3) most recent years, any notices or other communications to or from the ~~fiduciaries, administrators,~~ Internal Revenue Service or ~~trustees~~ any office or representative of ~~any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS,~~ the Department of ~~Labor, the PBGC, any participant in or beneficiary of any such Plan~~ Labor or any ~~other person whomsoever. The Company knows~~ Governmental Authority in respect of ~~any reasonable basis for any~~ such ~~claim, lawsuit, dispute, action or controversy.~~employee benefit plan

Appears in 1 contract

Sources: Membership Interests Purchase Agreement (CorEnergy Infrastructure Trust, Inc.)

Plans; ERISA. (a) ~~Except as disclosed on~~ The Disclosure Schedule ~~2.18,~~ lists (i) ~~neither~~ all "employee benefit plans" (as such term is defined in Section 3(3) of ERISA) of which any of the Company ~~nor either~~ or any Subsidiary is or ever was a sponsor or participating employer or as to which the Company or any Subsidiary ~~currently maintains or sponsors, or~~ makes contributions or is required to make ~~contributions to~~contributions, ~~any Plans,~~ and (ii) any similar employment, severance or other arrangement or policy of any of the Company or any Subsidiary (whether written or oral) providing for health, life, vision or dental insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, fringe benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits (collectively, the "Plans"). Except as disclosed on Section 2.13 of the Disclosure Schedule, (i) none of ~~such Company~~ the Plans is or was a "multi-employer plan," as defined in Section 3(37) of ~~ERISA~~ERISA or other pension plan subject to Title IV or Part 3 of Title I of ERISA or Section 412 of the Code, (~~iii~~ii) none of ~~such Company Plans is a "defined benefit pension plan" within~~ the ~~meaning of Section 3(35) of ERISA, (iv) none of such Company~~ Plans provides or provided post-retirement medical or health benefits ~~(other than COBRA continuation coverage~~ except as required by ~~federal law or similar state insurance law)~~Law, (viii) none of ~~such Company~~ the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the ~~Internal Revenue~~ Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the ~~Internal Revenue~~ Code, and (viiv) neither the Company nor ~~either Company Subsidiary is a party to~~ any ~~collective bargaining agreement, and (vii) neither the Company nor either Company~~ Subsidiary has announced or otherwise made any commitment to create or amend any Plan~~, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status~~. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any ~~Subsidiary~~ of its Subsidiaries will not be able to terminate immediately after the Closing in accordance with their ~~terms and ERISA~~terms. With respect to each ~~of such Plans~~Plan, at the Closing there will be no material unrecorded liabilities ~~of the Company or either Company Subsidiary~~ with respect to the establishment, implementation, operation, administration or termination of any ~~such~~ Plan, or the termination of the participation in any ~~such~~ Plan ~~by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained~~ by the Company or ~~either Company~~ any Subsidiary~~, the~~ . (b) The Company has delivered to Parent true and complete copies of: (Ii) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (IIii) the currently effective ~~Summary Plan Description~~ summary plan description pertaining to each of ~~such Plans~~the Plans (if any), (~~III~~iii) ~~all~~ the three (3) most recent annual reports for each of ~~such~~ the Plans (including all related schedules~~) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable~~), (Viv) the most recent ~~IRS~~ Internal Revenue Service determination ~~letter, opinion, notification or advisory~~ letter ~~(as the case may be)~~ for each ~~such~~ Plan which is intended to constitute a qualified plan under Section ~~401~~ 401(a) of the ~~Internal Revenue~~ Code, and (VIv) for each ~~funded~~ unfunded Plan, financial statements consisting of (aA) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (bB) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor ~~either Company~~ any Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction ~~under~~ (within the meaning of Section 406 of ERISA or Section 4975 of the ~~Internal Revenue~~ Code), and neither the Company nor ~~either Company~~ any Subsidiary has any knowledge of any circumstances which reasonably might result in any ~~such~~ material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan ~~maintained by the Company or either Company Subsidiary~~ which is required to comply with the provisions of Section ~~4980C~~ 4980B of the ~~Internal Revenue~~ Code, or with the requirements referred to in Section 4980D of the ~~Internal Revenue~~ Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the ~~Company~~ Plans which is intended to be a qualified plan under Section 401(a) of the ~~Internal Revenue~~ Code has received a favorable determination ~~letter, opinion, notification or advisory~~ letter from the ~~IRS~~ Internal Revenue Service, and has been operated in accordance with its terms and with the applicable provisions of the Code. Each Plan that is required or ~~has a period of time remaining~~ intended to be qualified under applicable ~~Treasury regulations~~ law or ~~IRS pronouncements in which~~ registered or approved by a government agency or authority has been so qualified, registered or approved by the appropriate governmental agency or authority, and nothing has occurred since the date of the last qualification, registration or approval to ~~apply for~~ cause the appropriate governmental agency or authority to revoke, or otherwise adversely affect, such ~~a determination and make any amendments necessary to obtain a favorable determination as~~ qualification, registration or approval to the ~~qualification~~ knowledge of ~~each such Plan~~the Company. All of the ~~Company~~ Plans have been administered and maintained in substantial compliance with their ~~terms,~~ terms and ERISA, the ~~Internal Revenue~~ Code and all other ~~applicable~~ Laws, to the extent applicable. All contributions required to be made to each of the ~~Company~~ Plans under the terms of that Plan, ERISA, the ~~Internal Revenue~~ Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Plans. There is no contract, agreement or benefit arrangement covering any employee of the Company ~~Plans.~~ or any Subsidiary which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (e) as defined in Section 280G of the Code). Neither the execution or performance of this Agreement nor the ~~consummation of any~~ closing of the ~~transactions contemplated hereby (whether alone or upon the occurrence of any additional or further acts or events)~~ Acquisition will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) ~~on the part~~ of Parent or ~~its Affiliates~~ any Subsidiary to the PBGC, to any Plan, or to any present or former ~~employee, director, officer, stockholder, contractor or consultant~~ employee of ~~Parent, the Surviving Corporation,~~ Parent or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial StatementsSubsidiary, (ii) be a trigger event under any ~~Company~~ Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any ~~such~~ present or former employee, officer, director, ~~stockholder~~shareholder, contractor, or consultant, or any of their ~~dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment)~~dependents, or (iii) accelerate the time of payment or ~~vesting (except with respect to termination of any qualified retirement plan)~~vesting, or increase the amount, of ~~any~~ compensation ~~theretofore~~ or ~~thereafter~~ other remuneration (whether payable in cash, securities or other property) due ~~or granted~~ to any employee, officer, director, shareholder, contractor, or consultant of the Company or ~~either Company Subsidiary or~~ any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminentSubsidiary. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under Section 4980B of the Internal Revenue Code. (ge) Other than routine claims for benefits under the ~~Company~~ Plans, there are no pending, or, to the best knowledge of the Company, threatened, Actions or Proceedings involving ~~such~~ the Plans, or the fiduciaries, administrators, or trustees of any of ~~such~~ the Plans or the Company or ~~either Company~~ any Subsidiary as the employer or sponsor under any ~~such~~ Plan, with any of the IRS, the Department of Labor, the PBGC, or other governmental authority (whether in the U.S. or Canada), any participant in or beneficiary of any ~~such~~ Plan or any other person whomsoever. The Company knows of ~~any~~ no reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Acquisition Agreement (Broadcom Corp)

Plans; ERISA. (a) ~~Except as disclosed on Schedule 2.18, (i) neither~~ All of the Plans of the Company ~~nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in~~ and its Subsidiaries are listed on Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e2.14(a) of the ~~Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20)~~ Company Disclosure Schedule Copies of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to all such Plans ~~that Parent continues after~~ have been provided to Parent. To the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiaryextent applicable, the ~~Company has delivered to Parent true~~ Plans comply with the requirements of ERISA and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and ~~(VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such~~ any Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified ~~plan~~ under Section 401(a) of the Internal Revenue Code and each trust intended to qualify under Section 501(a) of the Internal Revenue Code (i) has ~~received~~ either obtained a favorable determination ~~letter, opinion, notification or advisory~~ letter as to its qualified status from the IRS or still has a remaining period of time ~~remaining~~ under applicable ~~Treasury~~ treasury regulations or IRS pronouncements in which to apply for such a determination letter and to make any amendments necessary to obtain a favorable ~~determination as~~ determination, and (ii) incorporates or has been amended to incorporate all provisions required to comply with the Tax Reform Act of 1986 and subsequent legislation (except to the ~~qualification~~ extent such amendments may be made without penalty within applicable amendatory periods). The Company has furnished or made available to Parent copies of ~~each~~ the most recent IRS determination letters and Forms 5500 for the three most current Plan years with respect to any such Plan. ~~All~~ No Plan is covered by Title IV of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code ERISA or ~~any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1~~ Section 412 of the Internal Revenue ~~Code is in material compliance with such requirements~~Code. ~~There are no Liens against the property of~~ Neither the Company, ~~either Company Subsidiary or~~ any of its Subsidiaries nor any of their ~~respective ERISA~~ Affiliates has been a contributing employer to any multiemployer plan as defined under Section ~~412(n) of the Internal Revenue Code or Sections 302(f) or 4068~~ 4001 of ERISA. ~~The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans. (e)~~ Neither the ~~execution of this Agreement nor the consummation of~~ Company, any of ~~the transactions contemplated hereby (whether alone~~ its Subsidiaries nor any officer or upon the occurrence of any additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant director of the Company or ~~either Company Subsidiary or~~ any of ~~their dependents~~its Subsidiaries has incurred any Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. ~~With respect~~ None of the Plans promises or provides retiree medical or other retiree welfare benefits to any ~~insurance policy which provides~~person except as required by applicable Law, ~~or has provided~~including but not limited to, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as ~~amended ("COBRA")~~amended. Each Plan has been maintained and administered in all material respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable ~~COBRA regulations~~ to such Plans. No Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought, or to the best knowledge of the Company, is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. Section 2.14(a) of the Company Disclosure Schedule includes a listing of the accrued vacation Liability of the Company as of September 30, 2001. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Neither the Company nor any of its Subsidiaries is under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any director, officer or employee of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the ~~applicable~~ Company under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) materially increase any benefits otherwise payable under any Plan, or (iv) except for Options, result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company and its Subsidiaries have complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company or its Subsidiaries and their respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act ~~of 1996~~ and ~~the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under~~ other applicable health insurance requirements in Section ~~4980B~~ 4980D of the Internal Revenue ~~Code~~Code and Sections 701 through 734 of ERISA. (gd) ~~Other than routine claims for benefits under~~ With respect to the pension scheme of PBSL, BV insured by Zwitserleven N.V. and the individual pension commitments of PBSL, BV insured by Interpolis (collectively, the “PBSL, BV Pension Plan”), (i) the PBSL, BV Pension Plan complies in all material respects with the applicable Laws of The Netherlands; (ii) all past service commitments and pension contributions have been paid as of the date hereof; (iii) Section 2.21(b) of the Company ~~Plans~~Disclosure Schedule lists all of the participants in the PBSL, BV Pension Plan; (iv) no waivers have been signed by employees of PBSL, BV indicating that they do not want to participate in the PBSL, BV Pension Plan; (v) there are no ~~pending, or~~Actions or Proceedings concerning pensions pending and, to the knowledge of the Company, ~~threatened,~~ there are no such Actions or Proceedings ~~involving such Plans~~threatened; (vi) male and female employees at all times have been treated equal under the PBSL, or BV Pension Plan; (vii) there is no obligation of PBSL, BV to participate in any industry-level pension fund, nor has there ever been an obligation to participate in any industry-level pension fund; and (viii) the ~~fiduciaries~~PBSL, ~~administrators~~BV Pension Plan has not been materially amended since June 1, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy1999.

Appears in 1 contract

Sources: Agreement and Plan of Reorganization (Safenet Inc)

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, 17 there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or 18 the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter, opinion, notification or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans. (e) Neither the execution of this Agreement nor the consummation of any of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under Section 4980B of the Internal Revenue Code. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Merger Agreement (Wellcare Management Group Inc)

Plans; ERISA. (a) ~~Except as disclosed on Schedule 2.18, (i) neither~~ All of the Plans of the Company ~~nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in~~ are listed on Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e2.14(a) of the ~~Internal Revenue Code~~Company Disclosure Schedule. Copies of all such Plans have been made available to the Purchaser. To the extent applicable, ~~or an organization described in Sections 501(c)(9) or 501(c)(20)~~ the Plans comply with the requirements of the ~~Internal Revenue Code~~Employee Retirement Income Security Act of 1974, ~~(vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement~~as amended, and the rules and regulations promulgated thereunder (~~vii~~“ERISA”) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and ~~(VI~~except as disclosed on Section 2.14(a) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company ~~Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA~~Disclosure Schedule, ~~with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such~~ no Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified ~~plan~~ under Section 401(a) of the Internal Revenue Code ~~has received a favorable determination letter, opinion, notification~~ or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section ~~412(n~~501(a) of the Internal Revenue ~~Code~~ Code. No Plan is covered by Title IV of ERISA or ~~Sections 302(f) or 4068~~ Section 412 of the Internal Revenue Code. The Company has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. ~~The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date~~ Neither the Company nor any officer, manager or member has incurred any Liability or penalty under ~~each~~ Section 4971 through 4980E of the ~~Company Plans. (e) Neither the execution~~ Code or Title 1 of ~~this Agreement nor the consummation of any~~ ERISA. None of the ~~transactions contemplated hereby (whether alone~~ Plans promises or ~~upon the occurrence of any additional~~ provides retiree medical or ~~further acts or events) will (i) result in any obligation or liability (with respect to accrued~~ other retiree welfare benefits ~~or otherwise) on the part of Parent or its Affiliates to the PBGC,~~ to any ~~Plan~~person except as required by applicable Law, ~~or to any present or former employee~~including but not limited to, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as ~~amended ("COBRA")~~amended. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable ~~COBRA regulations~~ to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the Effective Date to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, the Company is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former member, manager, officer, employee or consultant of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any member, manager, officer or employee of the ~~applicable~~ Company under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) increase any benefits otherwise payable under any Plan or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company has complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company and its respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act ~~of 1996~~ and ~~the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under~~ other applicable health insurance requirements in Section ~~4980B~~ 4980D of the Internal Revenue ~~Code~~Code and Sections 701 through 734 of ERISA. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (Widepoint Corp)

Plans; ERISA. (a) ~~Except as disclosed on Schedule 2.18, (i) neither~~ All of the Plans of the Company ~~nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in~~ and its Subsidiaries are listed on Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e2.14(a) of the ~~Internal Revenue Code~~Company Disclosure Schedule. Copies of all such Plans have been made available to Parent. To the extent applicable, ~~or an organization described in Sections 501(c)(9) or 501(c)(20)~~ the Plans comply substantially with the requirements of the ~~Internal Revenue Code~~Employee Retirement Income Security Act of 1974, ~~(vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement~~as amended, and the rules and regulations promulgated thereunder (~~vii~~“ERISA”) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and ~~(VI~~except as disclosed on Section 2.14(a) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company ~~Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA~~Disclosure Schedule, ~~with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such~~ no Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified ~~plan~~ under Section 401(a) of the Internal Revenue Code ~~has received a favorable determination letter, opinion, notification~~ or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property of the Company, either Company Subsidiary or any of their respective ERISA Affiliates under Section ~~412(n~~501(a) of the Internal Revenue ~~Code~~ Code. No Plan is covered by Title IV of ERISA or ~~Sections 302(f) or 4068~~ Section 412 of the Internal Revenue Code. Neither the Company, any of its Subsidiaries nor any of their Affiliates has been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. ~~The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans. (e)~~ Neither the ~~execution of this Agreement nor the consummation of~~ Company, any of ~~the transactions contemplated hereby (whether alone~~ its Subsidiaries nor any officer or upon the occurrence of any additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC, to any Plan, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant director of the Company or ~~either Company Subsidiary or~~ any of ~~their dependents~~its Subsidiaries has incurred any material Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. ~~With respect~~ None of the Plans promises or provides retiree medical or other retiree welfare benefits to any ~~insurance policy which provides~~person except as required by applicable Law, ~~or has provided~~including but not limited to, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as ~~amended ("COBRA")~~amended. Each Plan has been maintained and administered in all material respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable ~~COBRA regulations~~ to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought, or to the best knowledge of the Company, is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increased (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former director, officer, employee or consultant of the Company or any Company Subsidiary under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the ~~applicable~~ Company under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) materially increase any benefits otherwise payable under any Plan, or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company and its Subsidiaries have complied substantially with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company or its Subsidiaries and their respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act ~~of 1996~~ and ~~the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under~~ other applicable health insurance requirements in Section ~~4980B~~ 4980D of the Internal Revenue ~~Code~~Code and Sections 701 through 734 of ERISA. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Stock Purchase Agreement (Viisage Technology Inc)

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) All of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans ~~(A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees~~ of the Company ~~or either Company Subsidiary or~~ and its Affiliates are listed on ~~behalf~~ Schedule 2.14. Copies of ~~any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to~~ all such Plans ~~that Parent continues after~~ have been provided to Purchaser, along with annual reports (Forms 5500) filed for any Plan for the ~~Closing~~last three (3) years. Each Plan has been maintained and administered, ~~or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing~~ in all material respects, in accordance with ~~their~~ its terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited ~~to, a penalty under Section 502~~ to the Employee Retirement Income Security Act of ~~ERISA~~1974, as ~~a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by~~ amended, and the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of rules and regulations promulgated thereunder (“ERISA”) and the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Any Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified ~~plan~~ under Section 401(a) of the Internal Revenue Code ~~has received a favorable determination letter, opinion, notification~~ or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Company Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Company Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 Section 501(a) of the Internal Revenue Code is ~~in material compliance with~~ so qualified and is subject to a current opinion or determination letter from the Internal Revenue Service regarding such ~~requirements~~qualification, which has been provided to Purchaser. ~~There are no Liens against the property~~ No Plan is covered by Title IV of ~~the Company, either Company Subsidiary~~ ERISA or ~~any of their respective ERISA Affiliates under~~ Section ~~412(n)~~ 412 of the Internal Revenue ~~Code or Sections 302(f) or 4068~~ Code. Neither the Company nor any of its Affiliates has been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. ~~The Interim Financial Statements properly reflect all amounts~~ Neither the Company nor any officer or director of the Company has incurred any Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. None of the Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable Law, including but not limited to, Sections 601 to 608 of ERISA and Section 4980B of the Code. No Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought, or to the knowledge of the Company or AE, is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as ~~liabilities to date under each~~ of the date hereof to the Plans have been made or accrued. All reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Schedule 2.14 or provided in Section 6.10 of this Agreement, neither the Company ~~Plans~~nor any of its Affiliates is under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (eb) ~~Neither~~ Except as provided in Schedule 2.14 or as contemplated by Section 6.10, neither the execution and delivery of this Agreement nor the consummation of ~~any of~~ the transactions contemplated hereby ~~(whether alone or upon the occurrence of any additional or further acts or events)~~ will (i) result in any ~~obligation~~ payment or ~~liability~~ increased benefit (~~with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC~~including without limitation severance, ~~to any Plan~~unemployment compensation, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay bonus or otherwise) becoming due to any ~~such present~~ current or former ~~employee~~director, officer, ~~director~~employee or consultant of the Company under any Plan or otherwise, ~~stockholder, contractor, or consultant, or~~ (ii) increase any ~~of their dependents (except with respect to termination of~~ benefits otherwise payable under any ~~qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment)~~Plan, or (iii) ~~accelerate~~ result in the acceleration of the time of payment or vesting ~~(except with respect to termination~~ of any ~~qualified retirement plan),~~ such benefits. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in a payment or ~~increase the amount, of any compensation theretofore or thereafter~~ benefit becoming due ~~or granted~~ to any ~~employee, officer,~~ director, ~~shareholder, contractor,~~ officer or ~~consultant~~ employee of the Company ~~or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits~~ under any ~~Company Plan, (A) there is and~~ Plan or otherwise which will be ~~no liability~~ characterized as a “parachute payment” within the meaning of ~~Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as~~ Section 280G of the ~~Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability~~ Internal Revenue Code (but without regard to ~~pay premiums as accrued on the Interim Financial Statements and~~ clause (Bb)(2)(A)(ii) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminentthereof). (fc) ~~With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage~~To the extent applicable, the ~~Company, each~~ Company ~~Subsidiary~~ and ~~each ERISA Affiliate has~~ its Affiliates have complied in all material respects with ~~(i)~~ the ~~applicable~~ continuation health care ~~continuation and notice provisions~~ coverage requirements of Section 4980B of the ~~Consolidated Omnibus Budget Reconciliation Act~~ Internal Revenue Code and Sections 601 through 608 of ~~1985~~ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company and their respective “qualified beneficiaries,” as ~~amended ("COBRA")~~defined in the Internal Revenue Code and ERISA, and with the ~~applicable COBRA regulations and (ii) the applicable~~ requirements of the Health Insurance Portability and Accountability Act ~~of 1996~~ and ~~the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under~~ other applicable health insurance requirements in Section ~~4980B~~ 4980D of the Internal Revenue ~~Code~~Code and Sections 701 through 734 of ERISA. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Stock Purchase Agreement (Intersections Inc)

Plans; ERISA. ~~(a) Except as disclosed on Schedule 2.18,~~ (i) ~~neither~~ Each ‘employee benefit plan’ (as such term is defined in the ~~Company nor either Company Subsidiary currently maintains~~ Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (‘ERISA’)) of which ABI is a sponsor or ~~sponsors,~~ participating employer or to which ABI makes or is required to make contributions toand each health, ~~any Plans, (ii) none~~ life or retirement insurance or benefits plan or arrangement of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical ABI or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which ~~Parent will be~~ ABI makes or is required to make ~~any~~ contributions ~~or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any~~ (each of the ~~current employees of the Company or either Company Subsidiary or on behalf of any other person~~foregoing being a ‘Plan’) has been maintained and administered, ~~after the Closing~~in all material respects, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with ~~their~~ its terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. (b) The present value of all accrued benefits under any Company Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penaltylaws, including but not limited ~~to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under~~ to ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of and the Internal Revenue Code. ~~None of the Company Plans or ERISA Affiliate Plans subject to~~ No Plan is covered by Title IV of ERISA ~~has been completely~~ or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code. ABI has not been a contributing employer to any multi-employer plan as defined in Section 4001 of ERISA. No action or proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought, ~~whether~~ or ~~not waived~~to the knowledge of ABI or INTX, ~~as of the most recently completed plan year of such Plan~~is threatened, ~~and no condition has occurred~~ against or ~~exists which by the passage of time could be expected~~ with respect to ~~result in an accumulated funding deficiency as of the last day of the current plan year of~~ any such Plan. ~~Furthermore~~All contributions, ~~none of the Company, either Company Subsidiary~~ reserves or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter, opinion, notification or advisory letter from the IRS or has a period of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code and all other applicable Laws. All contributions premium payments required to be made ~~to each~~ or accrued as of the ~~Company~~ date hereof to the Plans ~~under~~ have been made or accrued. All reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the ~~terms of that Plan~~Plans, ~~ERISA,~~ by the Internal Revenue ~~Code~~ Code, ERISA or any other applicable ~~Laws~~ law, have been ~~timely made~~so filed and furnished. ~~Each Company Plan intended~~ ABI is not under a legal or contractual obligation to ~~meet the requirements for tax-favored treatment under Subchapter B of Chapter 1~~ continue any of the ~~Internal Revenue Code is in material compliance with such requirements. There are no Liens against the property~~ Plans and may terminate any or all of the ~~Company, either Company Subsidiary or~~ Plans at any ~~of their respective ERISA Affiliates under Section 412(n)~~ time in accordance with the terms of the ~~Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Company Plans~~Plans and applicable law without incurring any liability. (eii) Neither the execution and delivery of this Agreement nor the consummation of ~~any of~~ the transactions contemplated hereby ~~(whether alone or upon the occurrence of any additional or further acts or events)~~ will (i) result in any ~~obligation~~ payment or ~~liability~~ increased benefit (~~with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC~~including without limitation severance, ~~to any Plan~~unemployment compensation, or to any present or former employee, director, officer, stockholder, contractor or consultant of Parent, the Surviving Corporation, or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay bonus or otherwise) becoming due to any ~~such present~~ current or former ~~employee~~director, officer, ~~director~~employee or consultant of ABI under any Plan or otherwise, ~~stockholder, contractor, or consultant, or~~ (ii) increase any ~~of their dependents (except with respect to termination of~~ benefits otherwise payable under any ~~qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment)~~Plan, or (iii) ~~accelerate~~ result in the acceleration of the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependents. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and no such proceedings with respect to any insurer are imminent. (f) With respect to each Company Plan or ERISA Affiliate Plan which provides health care coverage, the Company, each Company Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the applicable COBRA regulations and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has incurred any liability under Section 4980B of the Internal Revenue Code. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such ~~Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy~~benefits.

Appears in 1 contract

Sources: Joint Venture Agreement (Intersections Inc)

Plans; ERISA. (a) ~~Except as disclosed~~ All of the Plans are listed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e3.11(a) of the ~~Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the~~ Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities of the Company or either Company Subsidiary with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such datesDisclosure Schedule. (b) ~~The present value of all accrued benefits under any Company~~ Any Plan or ERISA Affiliate Plan subject to Title IV of ERISA shall not, as of the Effective Time, exceed the value of the assets of such Plans allocated to such accrued benefits, determined on an ongoing basis and based upon the applicable provisions of the Internal Revenue Code and ERISA, and each such Plan shall be capable of being terminated as of the Effective Time in a "standard termination" under Section 4041(b) of ERISA. With respect to each Company Plan or ERISA Affiliate Plan that is subject to Title IV of ERISA, (i) no amount is due or owing from any Company or any of its ERISA Affiliates to the PBGC or to any "multi-employer Plan" as defined in Section 3(37) of ERISA on account of any withdrawal therefrom and (ii) no such Plan has been terminated within the last six years other than in accordance with ERISA or at a time when the Plan was not sufficiently funded. The transactions contemplated hereunder, including without limitation the termination of any Company Plan or ERISA Affiliate Plan at or prior to the Closing, shall not result in any such withdrawal or other liability with respect to the Company or either Company Subsidiary under any applicable Laws. (c) Neither the Company nor either Company Subsidiary is subject to any material liability, tax or penalty whatsoever to any person or agency whomsoever as a result of engaging in a prohibited transaction under ERISA or the Internal Revenue Code, and neither the Company nor either Company Subsidiary has any knowledge of any circumstances which reasonably might result in any such material liability, tax or penalty, including but not limited to, a penalty under Section 502 of ERISA, as a result of a breach of any duty under ERISA or under other Laws. Each Plan maintained by the Company or either Company Subsidiary which is required to comply with the provisions of Section 4980C of the Internal Revenue Code, or with the requirements referred to in Section 4980D of the Internal Revenue Code, has complied in all material respects. No event has occurred which could subject any Company Plan to tax under Section 511 of the Internal Revenue Code. None of the Company Plans or ERISA Affiliate Plans subject to Title IV of ERISA has been completely or partially terminated nor has there been any "reportable event," as such term is defined in Section 4043(b) of ERISA, with respect to any of the Plans within the prior six years nor has any notice of intent to terminate been filed or given with respect to any such Plan within the prior six years. Within the last six years, there has been no (i) withdrawal by the Company, either Company Subsidiary or any of their respective ERISA Affiliates that is a substantial employer from a single-employer plan which is a Plan and which has two or more contributing sponsors at least two of whom are not under common control, as referred to in Section 4063(b) of ERISA, or (ii) cessation by the Company, either Company Subsidiary or any of their respective ERISA Affiliates of operations at a facility causing more than 20% of Plan participants to be separated from employment, as referred to in Section 4062(f) of ERISA. None of the Company, either Company Subsidiary, any of their respective ERISA Affiliates or any other organization of which any of them are a successor or parent corporation as defined in Section 4069(b) of ERISA, have engaged in any transaction described in Section 4069(a) of ERISA. (d) None of the current Company Plans or ERISA Affiliate Plans nor any trust created thereunder has incurred any "accumulated funding deficiency" as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, as of the most recently completed plan year of such Plan, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, none of the Company, either Company Subsidiary or any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Company Plans or ERISA Affiliate Plans. Each of the Company Plans which is intended to be a qualified ~~plan~~ under Section 401(a) of the Internal Revenue Code ~~has received a favorable determination letter, opinion, notification or advisory letter~~ and the trust(s) maintained pursuant thereto intended to be exempt from ~~the IRS or has a period~~ federal income taxation under Section 501 of time remaining under applicable Treasury regulations or IRS pronouncements in which to apply for such a determination and make any amendments necessary to obtain a favorable determination as to the qualification of each such Plan. All of the Company Plans have been administered and maintained in substantial compliance with their terms, ERISA, the Internal Revenue Code is either (A) subject to a current favorable determination letter from the Internal Revenue Service regarding such qualification, or (B) is based upon a master and ~~all other~~ prototype or volume submitter form, the sponsor of such form has received a current advisory opinion as to the form upon which each Company is entitled to rely under applicable ~~Laws. All contributions required to be made to each~~ Internal Revenue Service procedures, and the form of the ~~Company Plans~~ Plan complies with Section 401(a) of the Internal Revenue Code. No event has occurred with respect to any Plan which will or could reasonably give rise to the disqualification of any such Plan, the loss of intended tax consequences under the ~~terms~~ Internal Revenue Code, any Tax under Section 511 of ~~that Plan, ERISA,~~ the Internal Revenue Code or any other ~~applicable Laws have~~ Tax, liability or penalty. (c) No Company nor any ERISA Affiliate has ever sponsored, maintained, contributed to, or been ~~timely made. Each Company Plan intended~~ obligated under ERISA or otherwise to ~~meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the~~ contribute to (i) a “defined benefit plan” (as defined in ERISA Section 3(35) and Internal Revenue Code is Section 414(j)), (ii) a “multi-employer plan” (as defined in ~~material compliance with such requirements~~ERISA Sections 3(37) and 4001(a)(3)) or (iii) a “multiple employer plan” (meaning a plan sponsored by more than one employer within the meaning of ERISA Sections 4063 or 4064 or Internal Revenue Code Section 413(c)). ~~There~~ Neither Company nor any ERISA Affiliate has incurred and there are no ~~Liens against the property of the Company, either Company Subsidiary or~~ circumstances under which any of ~~their respective~~ them could reasonably incur any liability under Title IV of ERISA. Neither Company nor any ERISA ~~Affiliates~~ Affiliate has incurred any liability or penalty under Section ~~412(n)~~ 4971 through 4980E of the Internal Revenue Code or ~~Sections 302(f) or 4068~~ Title 1 of ERISA~~. The Interim Financial Statements properly reflect all amounts required to be accrued~~ . (d) Except as ~~liabilities to date under each~~ set forth on Schedule 3.11(d) of the Company ~~Plans~~Disclosure Schedule, none of the Plans promises or provides medical or other welfare benefits subsequent to termination of employment to any person except as required by Internal Revenue Code Section 4980B and ERISA Sections 601 to 608 and any similar state laws. (e) Each Plan has been maintained and administered in all material respects in compliance with its terms and with the requirements prescribed by any and all Laws, including ERISA and the Internal Revenue Code, which are applicable to such Plans. Neither ~~the execution of this Agreement~~ Seller nor ~~the consummation of~~ either Company has received any ~~of the transactions contemplated hereby (whether alone~~ notice from any governmental authority questioning or ~~upon the occurrence of~~ challenging such compliance. Neither any ~~additional or further acts or events) will (i) result in any obligation or liability (with respect to accrued benefits or otherwise) on the part of Parent or its Affiliates to the PBGC,~~ Plan nor either Company is subject to any ~~Plan~~tax or penalty under the Patient Protection and Affordable Care Act. (f) Within the past three (3) complete calendar years and the current calendar year, no Plan is or ~~to any present~~ has been under audit or ~~former employee~~is or has been the subject of an investigation, ~~director~~prosecution, ~~officer~~inquiry, ~~stockholder, contractor~~ hearing or ~~consultant of Parent~~other proceeding by the Internal Revenue Service, the ~~Surviving Corporation,~~ Department of Labor or any their respective Subsidiaries or any of their dependents, except liability or obligations arising in the normal course a sponsor of a Company Plan or liability accrued on the Interim Financial Statements, (ii) be a trigger event under any Company Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents (except with respect to termination of any qualified retirement plan or payment of benefits in the normal course thereunder, such as upon termination of employment), or (iii) accelerate the time of payment or vesting (except with respect to termination of any qualified retirement plan), or increase the amount, of any compensation theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of the Company or either Company Subsidiary or any of their dependentsother Governmental Authority. With respect to any insurance policy which provides, or has provided, funding for benefits under any Company Plan, (A) there is and will be no liability of Parent or its Affiliates in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Effective Time, nor would there be any such liability if such insurance policy were terminated as of the Effective Time, except for liability to pay premiums as accrued on the Interim Financial Statements and (B) to To the knowledge of the Company, and the plan administrator of any Plan, no ~~insurance company issuing any such policy~~ Plan is the subject of a threatened investigation, prosecution, inquiry, hearing or other proceeding by the Internal Revenue Service, the Department of Labor or other Government Authority. (g) No Action (excluding claims for benefits incurred in ~~receivership, conservatorship, bankruptcy, liquidation~~the ordinary course of Plan activities) has been brought or is pending, or ~~similar proceeding~~to the knowledge of the Company or of the fiduciaries of any Plan, ~~and no such proceedings~~ has been threatened with respect to any ~~insurer are imminent~~Plan. (fh) None of Seller, any ERISA Affiliate, and nor any administrator or fiduciary of any Plan (or any agent of any of the foregoing) has engaged in any transaction, or acted or failed to act in any manner which could subject any Company to any direct or indirect liability (by indemnity or otherwise) for breach of any fiduciary, co-fiduciary or other duty under ERISA or any other law. No “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Internal Revenue Code Section 4975) of any Plan has engaged in any nonexempt “prohibited transaction” (as defined in Internal Revenue Code Section 4975 or ERISA Section 406). (i) Except as set forth on Schedule 3.11(i), since January 1, 1995, neither Company nor their Affiliates has ever maintained any non-qualified deferred compensation plan (as defined in Section 409A(d)(1) of the Internal Revenue Code). (j) With respect to each ~~Company Plan or ERISA Affiliate Plan which provides health care coverage~~Plan, prior to the ~~Company~~Closing, each Company ~~Subsidiary~~ has provided to Purchaser accurate and ~~each ERISA Affiliate has complied~~ complete copies, if applicable, of (or if not contained in ~~all material respects with~~ a written document, a description of): (i) ~~the applicable health care continuation~~ all Plan texts and ~~notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"),~~ agreements and ~~the applicable COBRA regulations and~~ related trust agreements or insurance or annuity contracts; (ii) the ~~applicable requirements~~ most recent annual and periodic accounting of plan assets; (iii) the ~~Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, and none of the Company, either Company Subsidiary~~ most recent determination or ~~any of their respective ERISA Affiliates has incurred any liability under Section 4980B of~~ opinion letter received from the Internal Revenue ~~Code~~Service; (iv) current summary plan descriptions, where applicable; and (v) the most recent Internal Revenue Service Form 5500. (g) Other than routine claims for benefits under the Company Plans, there are no pending, or, to the knowledge of the Company, threatened, Actions or Proceedings involving such Plans, or the fiduciaries, administrators, or trustees of any of such Plans or the Company or either Company Subsidiary as the employer or sponsor under any such Plan, with any of the IRS, the Department of Labor, the PBGC, any participant in or beneficiary of any such Plan or any other person whomsoever. The Company knows of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

Appears in 1 contract

Sources: Limited Liability Company Interests Purchase Agreement (CorEnergy Infrastructure Trust, Inc.)

Common use of Plans; ERISA Clause in Contracts