Company Employee Benefit Plans. Seller hereby represents and warrants to Parent as follows: (a) All Company Employee Benefit Plans which are "employee benefit plans," as defined in Section 3(3) of ERISA, are in compliance with and have been administered in all material respects in compliance with their terms and with all applicable requirements of law, including but not limited to the Code and ERISA, and all contributions required to be made to each such plan under the terms of such plan, ERISA or the Code for all periods of time prior to the Closing Date will by the Closing Date be timely made or paid in full or, to the extent not required to be made or paid to each such Plan on or before the Closing Date, have been fully reflected on the Pepe Balance Sheet or the balance sheets of the Companies and the Subsidiaries as of the Closing Date. (b) A favorable determination letter as to the qualification of each Company Pension Plan under Section 401(a) of the Code has been issued and remains in effect and the related trust has been determined to be exempt from taxation under Section 501(a) of the Code and any amendment made or event relating to such Company Pension Plan subsequent to the date of such determination letter has not adversely affected the qualified status of such Company Pension Plan. No issue concerning qualification of any Company Pension Plan is pending before or, to the best knowledge and belief of Seller, threatened by, the IRS. None of Seller, the Companies or the Subsidiaries or any other "disqualified person" (as defined in Section 4975 of the Code) or "party-in-interest" (as defined in Section 3(14) of ERISA) has engaged in any nonexempt "prohibited transaction" (as such term is defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any Company Employee Benefit Plan (or its related trust), the Companies or the Subsidiaries or any officer, director or employee of the Companies or the Subsidiaries to tax or penalty imposed under Section 4975 of the Code. The Companies and the Subsidiaries have not incurred, and do not reasonably expect to incur, any material liability to the Pension Benefit Guaranty Corporation (except for required premium payments and contributions, which payments and contributions have been made when due). (c) No Company Employee Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (including any Multiemployer Plan). (d) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a material liability of the Companies or the Subsidiaries following the Closing. "Controlled Group Liability" means any and all liabilities under (i) Title IV of ERISA, (ii) section 302 of ERISA, (iii) sections 412 and 4971 of the Code, (iv) the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (v) corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Company Employee Benefit Plans. For purposes of this Section 6.2, "ERISA Affiliate" means, with respect to any entity, trade or business, any other entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same "controlled group" as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA. (e) There are no pending or, to Seller's knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits, audits, investigations or arbitrations which have been threatened, asserted or instituted against the Company Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any material liability of the Companies or the Subsidiaries to the 26
Appears in 1 contract
Company Employee Benefit Plans. Seller hereby represents and warrants to Parent as follows: (a) All Parent agrees that all full-time employees of the Company Employee Benefit Plans which are "employee and its Subsidiaries who continue employment with Parent, the Surviving Corporation or any Subsidiary of the Surviving Corporation after the Effective Time (“Continuing Employees”) shall be eligible to continue to participate in either Parent’s or the Surviving Corporation’s health and welfare benefit plans," as defined plans in Section 3(3) of ERISA, are in compliance accordance with and have been administered in all material respects in compliance with their terms and with all applicable requirements of law, including but not limited to the Code and ERISA, and all contributions required to be made to each such plan under the terms of those plans and to the extent such planplans and programs provide the following benefits: medical/dental/vision care, ERISA life insurance, disability income, sick pay, holiday pay and vacation pay, 401(k) plan coverage, employee stock purchase or other incentive plans, dependent care or severance benefits. Each Continuing Employee shall be given credit, for purposes of any service requirements for participation or vesting, for his or her period of service with the Code for all periods Company or any of time its Subsidiaries credited under a similar plan prior to the Closing Date will Effective Time. Each Continuing Employee who, at the Effective Time, was participating in an employee group health plan maintained by Company or any of its Subsidiaries that is terminated by Parent shall not be excluded from Parent’s employee group health plan or limited in coverage thereunder by reason of any waiting period restriction or pre-existing condition limitation; provided, however, that Section 7.14 nothing in this Section 7.10 or elsewhere in this Agreement shall limit the Closing Date right of Parent or the Surviving Corporation to amend or terminate any such health or welfare benefit at any time, and Section 7.15 if Parent or any Surviving Corporation terminates any of Surviving Corporation’s health or welfare benefit plans, then the Continuing Employees shall be timely made or paid eligible to participate in full orParent’s health and welfare benefit plans, to substantially the same extent not required as similarly situated employees of Parent. Nothing in this Section 7.10 or elsewhere in this Agreement shall be construed to be made or paid create a right in any employee to each such Plan on or before the Closing Date, have been fully reflected on the Pepe Balance Sheet or the balance sheets of the Companies and the Subsidiaries as of the Closing Date. (b) A favorable determination letter as to the qualification of each Company Pension Plan under Section 401(a) of the Code has been issued and remains in effect and the related trust has been determined to be exempt from taxation under Section 501(a) of the Code and any amendment made or event relating to such Company Pension Plan subsequent to the date of such determination letter has not adversely affected the qualified status of such Company Pension Plan. No issue concerning qualification of any Company Pension Plan is pending before or, to the best knowledge and belief of Seller, threatened byemployment with Parent, the IRS. None of Seller, the Companies or the Subsidiaries Surviving Corporation or any other "disqualified person" (as defined in Section 4975 Subsidiary of the Code) or "party-in-interest" (as defined in Section 3(14) of ERISA) has engaged in any nonexempt "prohibited transaction" (as such term is defined in Section 4975 of the Code or Section 406 of ERISA)Parent, which could subject any Company Employee Benefit Plan (or its related trust), the Companies or the Subsidiaries or any officer, director or employee of the Companies or the Subsidiaries to tax or penalty imposed under Section 4975 of the Code. The Companies and the Subsidiaries have not incurredemployment of each Continuing Employee shall be “at will” employment, and do not reasonably expect to incur, any material liability to the Pension Benefit Guaranty Corporation (except for required premium payments and contributions, which payments and contributions have been made when due). (c) No Company Employee Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (including any Multiemployer Plan). (d) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a material liability of the Companies or the Subsidiaries following the Closing. "Controlled Group Liability" means any and all liabilities if permitted under (i) Title IV of ERISA, (ii) section 302 of ERISA, (iii) sections 412 and 4971 of the Code, (iv) the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (v) corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Company Employee Benefit Plans. For purposes of this Section 6.2, "ERISA Affiliate" means, with respect to any entity, trade or business, any other entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same "controlled group" as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA. (e) There are no pending or, to Seller's knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits, audits, investigations or arbitrations which have been threatened, asserted or instituted against the Company Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any material liability of the Companies or the Subsidiaries to the 26applicable law.
Appears in 1 contract
Company Employee Benefit Plans. Seller hereby represents and warrants to Parent as follows: (a) All Parent agrees that all full-time employees of the Company Employee Benefit Plans which are and its Subsidiaries who continue employment with Parent, the Surviving Corporation or any Subsidiary of the Surviving Corporation after the Effective Time ("employee Continuing Employees") shall be eligible to continue to participate in either Parent's or the Surviving Corporation's health and welfare benefit plans," as defined plans in Section 3(3) of ERISA, are in compliance accordance with and have been administered in all material respects in compliance with their terms and with all applicable requirements of law, including but not limited to the Code and ERISA, and all contributions required to be made to each such plan under the terms of those plans and to the extent such planplans and programs provide the following benefits: medical/dental/vision care, ERISA life insurance, disability income, sick pay, holiday pay and vacation pay, 401(k) plan coverage, employee stock purchase or other incentive plans, dependent care or severance benefits. Each Continuing Employee shall be given credit, for purposes of any service requirements for participation or vesting, for his or her period of service with the Code for all periods Company or any of time its Subsidiaries credited under a similar plan prior to the Closing Date will Effective Time. Each Continuing Employee who, at the Effective Time, was participating in an employee group health plan maintained by Company or any of its Subsidiaries that is terminated by Parent shall not be excluded from Parent's employee group health plan or limited in coverage thereunder by reason of any waiting period restriction or pre-existing condition limitation; provided, however, that (i) nothing in this Section 7.10 or elsewhere in this Agreement shall limit the Closing Date right of Parent or the Surviving Corporation to amend or terminate any such health or welfare benefit at any time, and (ii) if Parent or any Surviving Corporation terminates any of Surviving Corporation's health or welfare benefit plans, then the Continuing Employees shall be timely made or paid eligible to participate in full orParent's health and welfare benefit plans, to substantially the same extent not required as similarly situated employees of Parent. Nothing in this Section 7.10 or elsewhere in this Agreement shall be construed to be made or paid create a right in any employee to each such Plan on or before the Closing Date, have been fully reflected on the Pepe Balance Sheet or the balance sheets of the Companies and the Subsidiaries as of the Closing Date. (b) A favorable determination letter as to the qualification of each Company Pension Plan under Section 401(a) of the Code has been issued and remains in effect and the related trust has been determined to be exempt from taxation under Section 501(a) of the Code and any amendment made or event relating to such Company Pension Plan subsequent to the date of such determination letter has not adversely affected the qualified status of such Company Pension Plan. No issue concerning qualification of any Company Pension Plan is pending before or, to the best knowledge and belief of Seller, threatened byemployment with Parent, the IRS. None of Seller, the Companies or the Subsidiaries Surviving Corporation or any other "disqualified person" (as defined in Section 4975 Subsidiary of the Code) or "party-in-interest" (as defined in Section 3(14) of ERISA) has engaged in any nonexempt "prohibited transaction" (as such term is defined in Section 4975 of the Code or Section 406 of ERISA)Parent, which could subject any Company Employee Benefit Plan (or its related trust), the Companies or the Subsidiaries or any officer, director or employee of the Companies or the Subsidiaries to tax or penalty imposed under Section 4975 of the Code. The Companies and the Subsidiaries have not incurredemployment of each Continuing Employee shall be "at will" employment, and do not reasonably expect to incur, any material liability to the Pension Benefit Guaranty Corporation (except for required premium payments and contributions, which payments and contributions have been made when due). (c) No Company Employee Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (including any Multiemployer Plan). (d) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a material liability of the Companies or the Subsidiaries following the Closing. "Controlled Group Liability" means any and all liabilities if permitted under (i) Title IV of ERISA, (ii) section 302 of ERISA, (iii) sections 412 and 4971 of the Code, (iv) the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (v) corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Company Employee Benefit Plans. For purposes of this Section 6.2, "ERISA Affiliate" means, with respect to any entity, trade or business, any other entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same "controlled group" as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA. (e) There are no pending or, to Seller's knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits, audits, investigations or arbitrations which have been threatened, asserted or instituted against the Company Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any material liability of the Companies or the Subsidiaries to the 26applicable law.
Appears in 1 contract
