Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives. (b) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (d) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP. (e) None of Parent or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISA, (iii) a multiple employer plan as described in Section 413(c) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
Appears in 4 contracts
Sources: Merger Agreement (Ready Capital Corp), Merger Agreement (Anworth Mortgage Asset Corp), Merger Agreement (Ready Capital Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Parent Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives.
(b) Each material Parent Benefit Plan has been administeredestablished, funded (if applicable) funded, administered and maintained in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of the Parent, threatened against, on behalf of or with respect to, any of the Parent Benefit Plans, except for such pending actionsProceedings that would not reasonably be expected to have, suits individually or claims in the aggregate, a Parent Material Adverse Effect, and there are no Proceedings by a Governmental Entity on behalf of or with respect to any of the Parent Benefit Plans, except for such Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There are no material unfunded benefit obligations Each Parent Benefit Plan that is or was intended to be qualified under Section 401(a) of the Code has received a current favorable determination letter or may rely upon a current opinion or advisory letter from the Internal Revenue Service and to the knowledge of Parent nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Parent Benefit Plan. The Parent and its Subsidiaries have not been properly accrued for in Parent’s financial statements incurred any material liability (whether or disclosed in not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the notes thereto in accordance with GAAPCode.
(e) None of Neither the Parent or nor any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 sponsors, maintains, contributes to or has an obligation to contribute to (including on account of any member of their Aggregated Group) or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, a plan that is: (i) a plan “multiemployer plan” (as defined in Section 3(37) of ERISA) or an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA and/or or Section 412 of the Code, ; (ii) a multiemployer plan “multiple employer plan” within the meaning of Section 3(37) 210 of ERISA, (iii) a multiple employer plan as described in ERISA or Section 413(c) of the Code, ; or (iviii) a “multiple employer welfare arrangement arrangement” (within as defined in Section 3(40) of ERISA). Neither the meaning Parent nor any of ERISA 3(40))its Subsidiaries has any current or contingent liability or obligation as a consequence of at any time being considered a single employer with any other Person under Section 414 of the Code.
(f) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage, no Parent Benefit Plan provides and the Parent and its Subsidiaries have no current or potential obligation to provide retiree, post-employment, post-ownership, or post-service medical, disability, life insurance or other welfare benefits to any Person.
Appears in 4 contracts
Sources: Merger Agreement (Earthstone Energy Inc), Merger Agreement (Earthstone Energy Inc), Merger Agreement (Permian Resources Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(ain Section 4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries has, or could reasonably be expected to have have, any material liability (such Employee Benefit Plans, and whether or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (not material, the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans (or, in the case of any unwritten Company Plan, a written description thereof) and any amendments thereto and, as applicable, the most current version versions of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Company Plan, in each case, have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws.
(c) Each Company Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code has received a favorable determination letter, except where or may rely on a favorable opinion letter, issued by the failure IRS, and to so comply the knowledge of the Company, no events have occurred that would not reasonably be expected to have, individually result in any such letter being revoked or in the aggregate, a Parent Material Adverse Effectloss of the qualified status of any such Company Plan.
(cd) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(f) There are no material unfunded benefit obligations with respect to any Company Plan that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eg) None of Parent the Company, any of its Subsidiaries, or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 their respective ERISA Affiliates, contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 of the Code.
(h) Except for continuation coverage to be provided, and for no longer than continuation coverage is required to be provided, pursuant to Section 4980B of the Code or any similar state Law for which any director, officer or employee (including any former director, officer or employee) is responsible for the full cost of such coverage, neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Company Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer or employee (including any former director, officer or employee) of the Company or any of its Affiliates.
(i) Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former service provider of the Company or any of its Affiliates for any Tax incurred by such service provider under Sections 409A or 4999 of the Code.
(j) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any current or former officers, employees or consultants of the Company or any of its Affiliates, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a multiple employer plan trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any current or former employee, director or consultant of the Company or any of its Affiliates or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan.
(k) No payment or benefit (or portion thereof) that is required to be made by the Company or any of its Subsidiaries under any Company Plan or this Agreement with respect to any “disqualified individual” (as described defined within Treas. Reg. 1.280G-1, Q&A 15), individually or in the aggregate, could be an “excess parachute payment” within the meaning of Section 413(c280G(b) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Evofem Biosciences, Inc.), Agreement and Plan of Merger (Aditxt, Inc.), Merger Agreement (Evofem Biosciences, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent the Company or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(e) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent Company or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISA, (iii) a multiple employer plan as described in Section 413(c) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
(f) Except as contemplated by this Agreement or as set forth on Schedule 4.10(f) of the Company Disclosure Letter, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their respective officers, employees or consultants, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of any compensation or benefits payable to or in respect of any current or former employee, director or consultant, or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan.
(g) Each Company Plan that is a non-qualified deferred compensation plan or arrangement within the meaning of Section 409A of the Code, and any underlying award or benefit, is in compliance, in all material respects, with Section 409A of the Code and no payment or award that has been made to any participant under a Company Plan is subject to the interest and penalties specified in Section 409A(a)(1)(B) of the Code. Neither the Company nor any Subsidiary of the Company (i) has any obligation to reimburse or indemnify any participant in a Company Plan for any of the interest or penalties specified in Section 409A(a)(1)(B) of the Code that may be currently due or triggered in the future, or (ii) has been required to report to any government authority any correction or taxes due as a result of a failure to comply with Section 409A of the Code.
Appears in 4 contracts
Sources: Merger Agreement (Ready Capital Corp), Merger Agreement (Anworth Mortgage Asset Corp), Merger Agreement (Ready Capital Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent the Company or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits suits, claims or claims other Proceedings pending (other than routine claims for benefits) or, to the knowledge Knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits suits, claims or claims other Proceedings that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) There are no material unfunded benefit obligations that All contributions required to be made to the Company Plans pursuant to their terms have been timely made, except where the failure to so comply has not been properly accrued for in Parent’s financial statements had, and would not reasonably be expected to have, individually or disclosed in the notes thereto in accordance with GAAPaggregate, a Company Material Adverse Effect.
(e) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to or could reasonably be expected to have any liability with respect to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 of the Code, (ii) a “multiple employer welfare arrangement” as defined in Section 3(40)(A) of ERISA, (iii) a “multiple employer plan plan” as described in Section 413(c) 210 of the CodeERISA, or (iv) a multiple employer welfare arrangement voluntary employee benefit association (within as defined in Section 501(a)(9) of the meaning of ERISA 3(40)Code).
(f) The execution and performance of this Agreement, either alone or in connection with any event, will not (i) result in any payment (whether of severance pay or otherwise) becoming due to any employee or individual independent contractor of the Company or its Subsidiaries, (ii) increase the amount of compensation or benefits due to any employee or individual independent contractor of the Company or its Subsidiaries, or (iii) accelerate the time of payment or vesting or increase the amount of compensation due to any employee or individual independent contractor of the Company or its Subsidiaries.
(g) None of the Company nor its Subsidiaries are a party to any Contract or arrangement providing for payments or benefits that could subject any Person to liability for Tax under Section 4999 of the Code or could be non-deductible pursuant to Section 280G of the Code as a result of the Transactions.
Appears in 4 contracts
Sources: Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a description if such plan is not written) of each of the Parent material Company Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent , along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectCompany Benefit Plan.
(c) As Each Company Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the Code.
(d) Except as set forth on Schedule 4.10(d) of the date of this AgreementCompany Disclosure Letter, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPCompany Benefit Plans.
(e) All material contributions required to be made by the Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan or any Employee Benefit Plan sponsored, maintained or contributed to by a member of the Company’s Aggregated Group, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person or member of the Company’s Aggregated Group, has engaged in a transaction in connection with which the Company, its Subsidiaries or a member of the Company’s Aggregated Group reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or the Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(374001(a)(3) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter, other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Company Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Except as set forth on Schedule 4.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any Company Employee or other current or former director, officer, employee or independent contractor under any Company Benefit Plan, (ii) directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any benefits under any Company Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the CodeEffective Time, or (iv) result in any payment from the Company or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of the Company or any of its Subsidiaries that would, individually or in combination with any other such payment from the Company or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither the Company nor any Subsidiary of the Company has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Company Benefit Plan or any other agreement, arrangement, or plan of the Company or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any Company Employees who reside or work outside of the United States.
Appears in 4 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Compensation Benefits. (a) Set forth on Schedule in Section 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries has, or could reasonably be expected to have have, any material liability (such Employee Benefit Plans, whether or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (not material, the “Parent Plans”). True, correct and complete copies of each of the Parent Plans (or, in the case of any unwritten Parent Plan, a written description thereof) and any amendments thereto and, as applicable, the most current version versions of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Parent Plan, in each case, have been furnished or made available to the Company or its Representatives.
(b) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws.
(c) Each Parent Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code has received a favorable determination letter, except where or may rely on a favorable opinion letter, issued by the failure IRS, and to so comply the knowledge of Parent, no events have occurred that would not reasonably be expected to have, individually result in any such letter being revoked or in the aggregate, a loss of the qualified status of any such Parent Material Adverse EffectPlan.
(cd) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(de) All material contributions required to be made to the Parent Plans pursuant to their terms have been timely made.
(f) There are no material unfunded benefit obligations with respect to any Parent Plan that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eg) None of Neither Parent or nor any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 their ERISA Affiliates contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) The execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from Parent or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their current or former respective officers, employees or consultants, (ii) materially increase any benefits otherwise payable under any Parent Plan, (iii) a multiple employer plan as described to the knowledge of Parent, result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Parent Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any current or former employee, director or consultant of Parent or its Subsidiaries or (iv) a multiple employer welfare arrangement (within limit or restrict the meaning right of ERISA 3(40))Parent or any of its Subsidiaries to merge, amend or terminate any Parent Plan.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Evofem Biosciences, Inc.), Agreement and Plan of Merger (Aditxt, Inc.), Merger Agreement (Evofem Biosciences, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with Plans.
(b) With respect to which each material Company Benefit Plan, the Company has provided or made available to the Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). Truetrue, correct and complete copies of each the current plan and trust documents (or a written description of material terms if such plan is not written) and, to the Parent Plans and extent applicable, (i) the most current version recent favorable determination, advisory or opinion letter received from the Internal Revenue Service; (ii) the most recent report filed on Form 5500 (and all schedules and attachments thereto); (iii) the most recent summary plan description provided to participants (and all summaries of any material modifications); (iv) the most recently prepared actuarial reports and financial statements; (v) all related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, ; and (vi) all material non-routine correspondence to or from any Governmental Entity received in the most recent Form 5500 filing and the most current version of past three (3) years addressing any applicable IRS determination letters have been furnished matter involving actual or made available potential material liability relating to the a Company or its RepresentativesBenefit Plan.
(bc) Each Parent Company Benefit Plan has been administeredestablished, funded (if applicable) funded, administered and maintained in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to havebe, individually or in the aggregate, a Parent Material Adverse Effectmaterial liability to the Company.
(cd) As of the date of this Agreement, there There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, on behalf of or with respect to, any of the Parent Company Benefit Plans, except for such pending actions, suits or claims Proceedings that would not reasonably be expected to havebe, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There material liability to the Company, and there are no material unfunded benefit obligations Proceedings by a Governmental Entity on behalf of or with respect to any of the Company Benefit Plans, except for such Proceedings that have would not been properly accrued for in Parent’s financial statements reasonably be expected to be, individually or disclosed in the notes thereto in accordance with GAAPaggregate, a material liability to the Company.
(e) None of Parent All material contributions, reimbursements, and premium payments required to be made by the Company or any of its Subsidiaries with respect to the Company Benefit Plans pursuant to their terms or any entity which would be deemed applicable Law have been timely made or properly accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Company Benefit Plan that is or was intended to be qualified under Section 401(a) of the Code has received a single employer with Parent current favorable determination letter or may rely upon a current opinion or advisory letter from the Internal Revenue Service and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person, has engaged in a “prohibited transaction” or breach of a fiduciary duty (as determined under ERISA) in connection with which the Company or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. The Company and its Subsidiaries have not incurred any material liability (whether or not assessed) under Code Section 414 Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) Neither the Company nor any of its Subsidiaries sponsors, maintains, contributes to or has an obligation to contribute to (including on account of any member of their Aggregated Group) or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, a plan that is or was: (i) a plan “multiemployer plan” (as defined in Section 3(37) of ERISA) or an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA and/or or Section 412 of the Code, ; (ii) a multiemployer plan “multiple employer plan” within the meaning of Section 3(37) 210 of ERISA, (iii) a multiple employer plan as described in ERISA or Section 413(c) of the Code; or (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). Neither the Company nor any of its Subsidiaries has any current or contingent liability or obligation as a consequence of at any time being considered a single employer with any other Person under Section 414 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage, no Company Benefit Plan provides and the Company and its Subsidiaries have no current or potential obligation to provide retiree, post-employment, post-ownership, or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Neither the execution and delivery of this Agreement, nor the consummation of the Transactions contemplated hereby, either alone or in combination with another event, could: (i) entitle any current or former employee, officer, director or other individual service provider of the Company or any Subsidiary thereof (or any dependent or beneficiary thereof) to any payment of compensation or benefits (whether in cash or property); (ii) increase the amount of compensation or benefits due or payable to any such Person set forth in the preceding clause (i); (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit; (iv) require a multiple employer welfare arrangement contribution by the Company to any Company Benefit Plan; (within v) restrict the meaning ability of ERISA 3(40)the Company to merge, amend or terminate any Company Benefit Plan, (vi) result in the forgiveness of any employee or service provider loan; or (vii) result in any payment (whether in cash, property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) of the Company or any of its Subsidiaries that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) or result in the imposition on any person of an excise tax under Section 4999 of the Code.
(j) Neither the Company nor any Subsidiary thereof has any current or contingent obligation to indemnify, gross-up, reimburse or otherwise make whole any Person for any Taxes, including those imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax law).
(k) To the knowledge of the Company, (i) each Company Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all IRS guidance promulgated thereunder, and (ii) to the knowledge of the Company, no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code.
(l) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any employee of the Company or any Subsidiary thereof (“Company Employees”) who resides or works outside of the United States.
Appears in 4 contracts
Sources: Merger Agreement (Earthstone Energy Inc), Merger Agreement (Earthstone Energy Inc), Merger Agreement (Permian Resources Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Parent Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a description if such plan is not written) of each of the material Parent Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each , along with the most recent report filed on Form 5500 and summary plan description with respect to each Parent Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectBenefit Plan.
(c) As Each Parent Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the Code.
(d) Except as set forth on Schedule 5.10(d) of the date of this AgreementCompany Disclosure Letter, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPParent Benefit Plans.
(e) None All material contributions required to be made by Parent or any of its Subsidiaries to the Parent Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of Parent, nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Parent Benefit Plan. With respect to any Parent Benefit Plan or an Employee Benefit Plan sponsored, maintained or contributed to by a member of the Parent’s Aggregated Group, none of Parent or any of its Subsidiaries, or, to the knowledge of Parent, any other Person or member of the Parent’s Aggregated Group, has engaged in a transaction in connection with which Parent, its Subsidiaries or a member of the Parent’s Aggregated Group reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Parent and its Subsidiaries do not have any entity which would be deemed to be a single employer with Parent material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent, any of its Subsidiaries under Code Section 414 or any member of their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Except as set forth on Schedule 5.10(h) of the Parent Disclosure Letter, other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Parent Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee of Parent or any Subsidiary thereof or other current or former director, officer, employee or independent contractor under any Parent Benefit Plan, (ii) directly or indirectly cause Parent to transfer or set aside any material amount of assets to fund any material benefits under any Parent Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Parent Benefit Plan on or following the CodeEffective Time, or (iv) result in any payment from Parent or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of the Company or any of its Subsidiaries that would, individually or in combination with any other such payment from Parent or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither Parent nor any Subsidiary of Parent has any obligation to provide, and no Parent Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Parent Benefit Plan or any other agreement, arrangement, or plan of Parent or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Parent Benefit Plan is maintained outside the jurisdiction of the United States.
Appears in 4 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as list of the date hereof, of all of the material Employee each Company Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plan.
(the “Parent Plans”). b) True, correct and complete copies of each material Company Benefit Plan (or, in the case of any material Company Benefit Plan not in writing, a description of the Parent Plans material terms thereof) and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent Plan has been administered, funded (if along with, as applicable) and maintained in compliance , with its terms respect to each material Company Benefit Plan, the most recent report filed on Form 5500, summary plan description, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from (including non-routine filings made with) any Governmental Entity received in the aggregate, a Parent Material Adverse Effectpast three (3) years.
(c) As of Each Company Benefit Plan has been maintained in compliance with all applicable Laws, including ERISA and the date of this Agreement, there Code in all material respects.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge Knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Benefit Plans, except for such pending and there are no Proceedings by a Governmental Entity with respect to any of the Company Benefit Plans.
(e) All contributions required to be made by the Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms have been timely made. With respect to any Company Benefit Plan, (i) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened, (ii) to the knowledge of the Company, no facts or circumstances exist that would not could reasonably be expected to havegive rise to any such actions, individually suits or in claims, and (iii) no material administrative investigation, audit or other administrative proceeding by any Governmental Entity is pending, or, to the aggregateknowledge of the Company, a Parent Material Adverse Effectthreatened.
(df) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Benefit Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(eg) None Each Company Benefit Plan that is intended to be qualified under Section 401(a) of Parent the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the Knowledge of the Company, nothing has occurred that would adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material.
(h) Neither the Company nor any entity which would of its Subsidiaries nor any Person that could be deemed to be treated as a single employer with Parent the Company or any of its Subsidiaries under Section 414(b), (c), (m) or (o) of the Code Section 414 (an “ERISA Affiliate”) maintains, sponsors, contributes to or has ever had an obligation to contribute to, and no Parent Company Benefit Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Sections 302 or 303 of ERISA, or Sections 412 or 430 of the Code.
(i) Except as required by applicable Law, no Company Benefit Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and neither the Company nor any of its Subsidiaries has any obligation to provide such benefits. The Company and its Subsidiaries have not incurred (whether or not assessed) or could reasonably be expected to incur any Tax or penalty under Section 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any employees of the Company or any of its Subsidiaries to any amount of compensation or benefits (including any severance pay or any material increase in severance pay or any loan forgiveness), (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee of the Company or any of its Subsidiaries, (iii) a multiple employer plan directly or indirectly cause the Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) otherwise give rise to any liability under any Company Benefit Plan or (v) limit or restrict the right to amend, terminate or transfer the assets of any Company Benefit Plan on or following the Effective Time.
(k) Except as described in Section 413(cset forth on Schedule 4.10(k) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, result in any “excess parachute payment” within the meaning of Section 280G of the Code, or (iv) a multiple employer welfare arrangement . Copies of Section 280G calculations with respect to any “disqualified individual” (within the meaning of ERISA 3(40))Section 280G of the Code) in connection with the Transactions, either alone or in combination with another event, have been furnished or made available to Parent or its Representatives.
(l) Neither the Company nor any of its Subsidiaries has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(m) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any employees of the Company or any of its Subsidiaries who reside or work outside of the United States.
Appears in 3 contracts
Sources: Merger Agreement (Vine Energy Inc.), Merger Agreement (Chesapeake Energy Corp), Merger Agreement (Chesapeake Energy Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(ain Section 4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries has, or could reasonably be expected to have have, any material liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans (or, in the case of any unwritten Company Plan, a written description thereof) and the most current version of any amendments thereto and, as applicable, any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Company Plan, in each case, have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) Each Company Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code has received a favorable determination letter, or may rely on a favorable opinion letter, issued by the IRS, and to the knowledge of the Company, no events have occurred that would reasonably be expected to result in any such letter being revoked or in the loss of the qualified status of any such Company Plan.
(d) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(f) There are no material unfunded benefit obligations with respect to any Company Plan that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eg) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 of the Code.
(h) Except for continuation coverage to be provided, and for no longer than the continuation coverage is required to be provided, pursuant to Section 4980B of the Code or any similar state Law for which any director, officer or employee (including any former director, officer or employee) is responsible for the full cost of such coverage, neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Company Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer or employee (including any former director, officer or employee) of the Company or any of its Subsidiaries.
(i) Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former service provider of the Company or any of its Subsidiaries for any Tax incurred by such service provider under Sections 409A or 4999 of the Code.
(j) Except as contemplated by this Agreement or as set forth in Section 4.10(j) of the Company Disclosure Letter, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their respective current or former officers, employees or consultants, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a multiple employer plan trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any current or former employee, director or consultant of the Company or its Subsidiaries or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan.
(k) Except as described set forth in Section 413(c4.10(k) of the Company Disclosure Letter, no payment or benefit (or portion thereof) that is required to be made by the Company, the Surviving Corporation or Parent under any Company Plan or this Agreement with respect to any “disqualified individual” (as defined within Treas. Reg. 1.280G-1, Q&A 15), individually or in the aggregate, could be an “excess parachute payment” within the meaning of Section 280G(b) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
Appears in 3 contracts
Sources: Merger Agreement (Arlington Asset Investment Corp.), Merger Agreement (Ellington Financial Inc.), Merger Agreement (Ellington Financial Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and (or, in the most current version case of any material Company Plan not in writing, a description of the material terms thereof) and related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent summary plan description with respect to each Company Plan and most recently prepared financial statements and actuarial reports (if any).
(bc) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect. Each Company Plan that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code complies and has complied, both in form and operation, with the requirements of Section 409A of the Code and the final regulations and other applicable guidance thereunder.
(cd) As of the date of this Agreement, there There are no actions, suits or claims Proceedings pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Plans, Company Plans within the past three (3) years except for such pending actions, suits or claims Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) All material contributions required to be made by the Company to the Company Plans pursuant to their terms have been timely made in all material respects.
(f) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(eg) None Each Company Plan that is intended to be qualified under Section 401(a) of Parent the Code has received a favorable determination letter from the Internal Revenue Service or may rely on an opinion or advisory letter from the Internal Revenue Service as to its qualified status and, to the knowledge of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan. With respect to any Company Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(h) Except as set forth on Schedule 4.01(h) of the Company Disclosure Letter, none of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 Aggregated Group sponsors, maintains, contributes to or has ever in the past six (6) years sponsored, maintained or had an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 or 4971 of the Code. Except as set forth on Schedule 4.01(h) of the Company Disclosure Letter, with respect to each Company Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) the fair market value of the assets of such Company Plan equals or exceeds the actuarial present value of all accrued benefits under such Company Plan (whether or not vested) on a termination basis; (iii) within the past six (6) years, no reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30)-day notice requirement has not been waived has occurred, and the consummation of the Transactions will not result in the occurrence of any such reportable event; (iv) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full in all material respects; (v) no material liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its Subsidiaries; and (vi) the PBGC has not instituted proceedings to terminate any such Company Plan and, to the Company’s knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Plan. Neither the Company nor any Affiliate has engaged in, or is a successor or affiliate of an entity that has engaged in, a transaction that is described in Section 4069 or Section 4212(c) of ERISA.
(i) Except as required by applicable Law or as set forth on Schedule 4.01(i) of the Company Disclosure Letter, no Company Plan provides retiree or post-employment health, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any employee or other service provider of the Company or its Subsidiaries to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee or other service provider, (iii) a multiple employer plan as described in Section 413(c) directly or indirectly cause the Company to transfer or set aside any material amount of the Codeassets to fund any benefits under any Company Plan, or (iv) a multiple employer welfare arrangement otherwise give rise to any material liability under any Company Plan, (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (vi) result in any “excess parachute payment” within the meaning of ERISA 3(40Section 280G of the Code.
(k) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(l) Except as set forth on Schedule 4.10(l) of the Company Disclosure Letter, no material Company Plan is maintained outside the jurisdiction of the United States or covers any employee or other service provider of the Company or its Subsidiaries who resides or works outside of the United States (each a “Non-U.S. Plan”). No Non-U.S. Plan is a defined benefit pension plan. Each Non-U.S. Plan (i) has been maintained in accordance with all applicable requirements; (ii) if intended to qualify for special tax treatment, meets all requirements for such treatment; and (iii) if required to be funded and/or book-reserved, is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, in each case of the foregoing items (i) through (iii), except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Conocophillips), Merger Agreement (Marathon Oil Corp), Merger Agreement (Marathon Oil Corp)
Compensation Benefits. (a) Set forth on Schedule in Section 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries has, or could reasonably be expected to have have, any material liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the Parent Plans (or, in the case of any unwritten Parent Plan, a written description thereof) and any amendments thereto and, as applicable, the most current version versions of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Parent Plan, in each case, have been furnished or made available to the Company or its Representatives.
(b) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) All material contributions required to be made to the Parent Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations with respect to any Parent Plan that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Neither Parent or nor any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except as contemplated by this Agreement or set forth in Section 5.10(g) of the Parent Disclosure Letter, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from Parent or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their respective officers, employees or consultants, (ii) increase any benefits otherwise payable under any Parent Plan, (iii) a multiple employer plan as described to the knowledge of Parent, result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Parent Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any employee, director or consultant of Parent or its Subsidiaries or (iv) a multiple employer welfare arrangement (within limit or restrict the meaning right of ERISA 3(40))Parent or any of its Subsidiaries to merge, amend or terminate any Parent Plan.
Appears in 3 contracts
Sources: Merger Agreement (Arlington Asset Investment Corp.), Merger Agreement (Ellington Financial Inc.), Merger Agreement (Ellington Financial Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Ohm Disclosure Letter is a list, as of the date hereof, of all of the material Employee Ohm Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such plan is not written) of each of the Parent material Ohm Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Ohm or its Representatives.
(b) Each Parent , along with the most recent report filed on Form 5500 and summary plan description with respect to each Ohm Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, a Parent Material Adverse Effectpast three (3) years addressing any matter involving actual or potential material liability relating to an Ohm Benefit Plan.
(c) As of Each Ohm Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the date of this Agreement, there Code.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of ParentOhm, threatened against, or with respect to, any of the Parent Ohm Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPOhm Benefit Plans.
(e) All contributions required to be made by Ohm or any of its Subsidiaries to the Ohm Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Ohm Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Ohm Benefit Plan. With respect to any Ohm Benefit Plan, none of Ohm or any of its Subsidiaries, or, to the knowledge of Ohm, any other Person, has engaged in a transaction in connection with which Ohm or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Ohm and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or Ohm, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Ohm Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage, no Ohm Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee of Ohm (an “Ohm Employee”) or any Subsidiary thereof or other current or former director, officer, employee or independent contractor under any Ohm Benefit Plan, (ii) directly or indirectly cause Ohm to transfer or set aside any material amount of assets to fund any material benefits under any Ohm Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Ohm Benefit Plan on or following the CodeCompany Merger Effective Time, or (iv) result in any payment from Ohm or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Ohm or any of its Subsidiaries that would, individually or in combination with any other such payment from Ohm or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither Ohm nor any Subsidiary of Ohm has any obligation to provide, and no Ohm Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Ohm Benefit Plan or any other agreement, arrangement, or plan of Ohm or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Ohm Benefit Plan is maintained outside the jurisdiction of the United States or covers any Ohm Employees who reside or work outside of the United States.
Appears in 3 contracts
Sources: Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Whiting Petroleum Corp), Merger Agreement (Oasis Petroleum Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such Company Benefit Plan is not written) of each of the Parent material Company Benefit Plans (including any amendments thereto) and the most current version of any related trust agreementsdocuments, insurance contracts or other funding arrangementsand favorable determination letters, summary plan descriptionsif applicable, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent , along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectCompany Benefit Plan.
(c) As of Each Company Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the date of this Agreement, there Code.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPCompany Benefit Plans.
(e) All contributions required to be made by the Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan, none of Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person, has engaged in a transaction in connection with which the Company or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or the Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage, no Company Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of (or create a new entitlement to), compensation due to any employee of the Company or any Subsidiary thereof (a “Company Employee”) or other current or former director, officer, employee or independent contractor under any Company Benefit Plan, (ii) directly or indirectly cause the Company or any Subsidiary thereof to transfer or set aside any material amount of assets to fund any material benefits under any Company Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the CodeCompany Merger Effective Time, or (iv) result in any payment from the Company or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of the Company or any of its Subsidiaries that would, individually or in combination with any other such payment from the Company or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither the Company nor any Subsidiary of the Company has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Company Benefit Plan or any other agreement, arrangement, or plan of the Company or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any Company Employees who reside or work outside of the United States.
Appears in 3 contracts
Sources: Merger Agreement (Baytex Energy Corp.), Merger Agreement (Ranger Oil Corp), Merger Agreement (Ranger Oil Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to or required to be contributed to by Parent the Company or any of its Subsidiaries or with respect Affiliates (without regard to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (materiality, the “Parent Company Plans”). .
(b) True, correct and complete copies of the plan documents, including any amendments thereto, of each of the Parent Company Plans (or if any such Company Plan is not in writing, a written description of such Company Plan) and the most current version of any related trust agreements, insurance contracts or other funding arrangementsdocuments, summary plan descriptionsdescriptions (including any summaries of material modifications thereto) and favorable determination letters, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters if applicable, have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 with respect to each Company Plan required to file a Form 5500.
(bc) Each Parent Company Plan has been administeredmaintained, operated, administered and funded (if applicable) and maintained in compliance all material respects in accordance with its terms and in material compliance with all applicable Laws. Each Company Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in material operational compliance with, except where and is in all respects in documentary compliance with, Section 409A of the failure Code, and no amount under any such Company Plan is or has been subject to so comply would not the interest and additional Tax set forth under Section 409A(a)(1)(B) of the Code.
(d) With respect to each Company Plan intended to be “qualified” within the meaning of Section 401(a) of the Code, (i) each such Company Plan has received a favorable determination letter (or opinion or advisory letter, if applicable) from the Internal Revenue Service with respect to its qualification, (ii) the trusts maintained thereunder are intended to be exempt from taxation under Section 501(a) of the Code and (iii) to the knowledge of the Company, no event has occurred or condition exists that could reasonably be expected to have, individually result in disqualification of such Company Plan or in adversely affect the aggregate, a Parent Material Adverse Effecttax-exemption of its related trust.
(ce) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits suits, claims or claims Proceedings that would not reasonably be expected to haveresult in a material liability to the Company of its Affiliates. No Company Plan is, individually or in within the aggregatelast six years has been, the subject of an examination, investigation or audit by a Governmental Entity, or is the subject of an application or filing under, or a participant in, a Parent Material Adverse Effectgovernment-sponsored amnesty, voluntary compliance, self-correction or similar program.
(df) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eg) None of Parent the Company or any member of its Subsidiaries Aggregated Group sponsors, maintains, contributes to, has an obligation to contribute to, or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes has ever sponsored, maintained, contributed to or has had an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code, (ii) a multiple employer plan that is subject to Section 413(c) of the Code, (iii) a multiple employer plan welfare arrangement, as described defined in Section 413(c3(40) of the Code, ERISA or (iv) a multiple employer welfare arrangement Company Plan that obligates the Company to provide a current or former employee, consultant, director or other service provider (or any beneficiary or dependent thereof) of the Company, any life insurance or medical or health benefits after his or her termination of employment or service with the Company, other than as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state Law.
(h) With respect to each Company Plan, (i) neither the Company nor its Subsidiaries have engaged in, and to the knowledge of the Company, no other Person has engaged in, any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) and (ii) none of the Company or any of its Affiliates or, to the knowledge of the Company, any other “fiduciary” (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of such Company Plan that, in either case, would reasonably be expected to result in a material liability to the Company or any of its Subsidiaries.
(i) Except as set forth on Schedule 4.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, either alone or in combination with another event, could: (i) entitle any current or former individual service provider of the Company or any Subsidiary (or any dependent or beneficiary thereof) to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such person; (iii) accelerate the vesting, funding or time of payment of any compensation or benefit; (iv) require a contribution by the Company or any Subsidiary to any Company Plan; (v) result in any payments or benefits that, individually or in combination with any other payment or benefit, could constitute the payment of any “excess parachute payment” within the meaning of ERISA 3(40))Section 280G of the Code or in the imposition of an excise Tax under Section 4999 of the Code; or (vi) trigger any Tax gross-up, Tax equalization or other Tax reimbursement payment from the Company or any Subsidiary to any individual service provider of the Company or any Subsidiary.
Appears in 3 contracts
Sources: Merger Agreement (Q Power LLC), Merger Agreement (Stronghold Digital Mining, Inc.), Merger Agreement (Bitfarms LTD)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a)(i) of the Parent Company Disclosure Letter is a list, as list of all material Company Plans. Set forth on Schedule 4.10(a)(ii) of the date hereof, Company Disclosure Letter is a list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Artemis Sponsor Plans.
(the “Parent Plans”). b) True, correct correct, and complete copies of each of the Parent material Company Plans and Artemis Sponsor Plans and the most current version of any related trust agreements, insurance contracts documents or other funding arrangements, summary plan descriptions, arrangements and the most recent Form 5500 filing and the most current version of any applicable IRS determination letters favorable determination, advisory, or opinion letters, if applicable, have been furnished or made available to the Company Contributor or its Representatives, along with, to the extent applicable, the most recent report filed on Form 5500 (with all schedules and attachments), the most recent summary plan description (with all summaries of material modifications thereto), the most recent financial statements and actuarial or other valuation reports, and all material non-routine correspondence to or from any Governmental Entity received in the last three years.
(bc) Each Parent Company Plan and each Artemis Sponsor Plan has been established, administered, funded (if applicable) operated, funded, and maintained in material compliance with its terms and in compliance in all material respects with all applicable Laws, except where including ERISA and the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectCode.
(cd) As of the date of this Agreement, there There are no actions, suits or claims material Proceedings pending (other than routine claims for benefits) or, to the knowledge of ParentCompany’s Knowledge, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits Company Plans or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAPassets thereof.
(e) All material contributions required to be made by the Company or any of the Company Subsidiaries to the Company Plans pursuant to their terms or applicable Law have been timely made.
(f) Each Company Plan and each Artemis Sponsor Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and has received a favorable determination letter (or in the case of a master/prototype or volume submitter plan, a favorable opinion or advisory letter) as to its qualification under the Code and, to the Company’s Knowledge, nothing has occurred, whether by action or failure to act, that could reasonably be expected to adversely affect the qualification of such Company Plan or Artemis Sponsor Plan, as applicable. With respect to each Company Plan, neither the Company nor any of the Company Subsidiaries, or, to the Company’s Knowledge, any other Person, has engaged in a transaction in connection with which the Company or any of the Company Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would be material. With respect to each Artemis Sponsor Plan, none of Artemis Sponsor nor any of its Affiliates has engaged in a transaction in connection with which Artemis Sponsor, the Company or any of the Company Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would be material. None of Parent Artemis Sponsor or any of its Affiliates, the Company or the Company Subsidiaries has any material liability (whether or any entity which would be deemed to be a single employer with Parent not assessed) under Sections 4980B, 4980D, or 4980H of the Code.
(g) None of Artemis Sponsor or any of its Affiliates, the Company or the Company Subsidiaries under Code Section 414 sponsors, maintains, contributes to to, or has an obligation to contribute to (or has in the last six years sponsored, maintained, contributed to, or had an obligation to contribute to), or has any current or contingent liability or obligation under or with respect to, and no Parent Company Plan is, : (i) a plan “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) an Employee Benefit Plan that is or was subject to Title IV of ERISA and/or ERISA, Section 302 of ERISA, or Section 412 or 4971 of the Code, (iiiii) a multiemployer plan within the meaning of “multiple employer welfare arrangement” (as defined in Section 3(373(40)(A) of ERISA), (iiiiv) a multiple employer plan as described in Section 413(c) of the Code, or (ivv) a multiple employer welfare arrangement “multiemployer plan” (within the meaning of ERISA 3(40)Section 3(37) of ERISA).
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Company Plan or Artemis Sponsor Plan provides any retiree or post-employment or post-service medical or life insurance benefits to any Person, and none of Artemis Sponsor or any of its Affiliates, the Company or the Company Subsidiaries has any obligation to provide such benefits.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any current or former Executive Employee, Company-Related Employee, Company Support Employee, current or former Company or Company Subsidiary employee, director, or other individual service provider of the Company or any of the Company Subsidiaries to severance pay, any increase in severance pay, or any other payment; (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any current or former Executive Employee, Company-Related Employee, Company Support Employee, current or former Company or Company Subsidiary employee, director, or other individual service provider of the Company or any of the Company Subsidiaries; (iii) directly or indirectly cause or require the Company to transfer or set aside any amount of assets to fund any benefits under any Company Plan; or (iv) limit or restrict the right to amend, terminate or transfer the assets of any Company Plan on or following the Closing.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, no amount or benefits that would be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by a current or former employee, director or other service provider of the Company or any Company Subsidiary who is a “disqualified individual” (within the meaning of Section 280G of the Code) would reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the transactions contemplated by this Agreement.
(k) Each Company Plan or any other agreement, arrangement, or plan of the Company or any of the Company Subsidiaries that constitutes, in any part, a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) has been operated and maintained in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No current or former employee, director or other service provider of the Company or any Company Subsidiary is entitled to a gross-up, make-whole, reimbursement or indemnification payment with respect to Taxes imposed under Section 409A or Section 4999 of the Code.
(m) No Company Plan is maintained outside the jurisdiction of the United States or covers any employees or other service providers of the Company or any of the Company Subsidiaries who reside or perform services primarily outside of the United States.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Firefly Disclosure Letter is a list, as of the date hereof, of all of the material Employee Firefly Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such plan is not written) of each of the Parent material Firefly Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Ohm or its Representatives.
(b) Each Parent , along with the most recent report filed on Form 5500 and summary plan description with respect to each Firefly Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectFirefly Benefit Plan.
(c) As of Each Firefly Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the date of this Agreement, there Code.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of ParentFirefly, threatened against, or with respect to, any of the Parent Firefly Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPFirefly Benefit Plans.
(e) All contributions required to be made by Firefly or any of its Subsidiaries to the Firefly Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Firefly Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Firefly Benefit Plan. With respect to any Firefly Benefit Plan, none of Firefly or any of its Subsidiaries, or, to the knowledge of Firefly, any other Person, has engaged in a transaction in connection with which Firefly or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Firefly and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or Firefly, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Firefly Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage, no Firefly Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee of Firefly or any Subsidiary thereof (a “Firefly Employee”) or other current or former director, officer, employee or independent contractor under any Firefly Benefit Plan, (ii) directly or indirectly cause Firefly to transfer or set aside any material amount of assets to fund any material benefits under any Firefly Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Firefly Benefit Plan on or following the CodeCompany Merger Effective Time, or (iv) result in any payment from Firefly or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Firefly or any of its Subsidiaries that would, individually or in combination with any other such payment from Firefly or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither Firefly nor any Subsidiary of Firefly has any obligation to provide, and no Firefly Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Firefly Benefit Plan or any other agreement, arrangement, or plan of Firefly or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Firefly Benefit Plan is maintained outside the jurisdiction of the United States or covers any Firefly Employees who reside or work outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Oasis Petroleum Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). .
(b) True, correct and complete copies of each of the material Parent Plans and the most current version of any related trust agreementsdocuments and favorable determination or opinion letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives, along with the most recent report field on Form 5500 and summary plan description with respect to each Parent Plan required to file a Form 5500, and all material correspondence to or from any Governmental Entity received in the last two years.
(bc) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance in all respects with its terms and all applicable Laws, including ERISA and the Code, except where the failure for failures to so comply with such Laws that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(cd) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, and there are no Proceedings by a Governmental Entity with respect to any of the Parent Plans, except for such pending actions, suits suits, claims or claims Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(de) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements statements, and all material contributions or disclosed other amounts payable by Parent or any of its Subsidiaries with respect to each Parent Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(ef) None Each Parent Plan that is intended to be a qualified plan under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified and, to the knowledge of Parent, nothing has occurred since such determination by the Internal Revenue Service that would adversely affect such qualification.
(g) There have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Part 4 of Subtitle B of Title I of ERISA in connection with any Parent Plan that could subject Parent or any of its Subsidiaries to a material tax or any entity which would be deemed to be a single employer with penalty imposed under Section 4975 of the Code or Section 502(i) of ERISA.
(h) No Parent Plan is, and none of Parent or any member of its Subsidiaries under Code Section 414 contributes to or Aggregated Group has an obligation to contribute any liability with respect to, and no Parent Plan is, (i) a plan subject to Title IV or Section 302 of ERISA and/or or Section 412 of the Code, (ii) a “multiemployer plan plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA, (iii) a “multiple employer plan as described in plan” within the meaning of Section 413(c) of the Code, or (iv) a “multiple employer welfare arrangement arrangement” (as defined in Section 3(40) of ERISA).
(i) Except as required by applicable Law, no Parent Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and none of Parent or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 5.10(j) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any employee of Parent to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any such employee of Parent, (iii) directly or indirectly cause Parent to transfer or set aside any material amount of assets to fund any material benefits under any Parent Plan, (iv) otherwise give rise to any material liability under any Parent Plan, (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Parent Plan on or following the Effective Time or (vi) result in an “excess parachute payment” within the meaning of ERISA 3(40))Section 280G(b) of the Code. Parent has made available to the Company true and complete copies of any Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection with the Transactions contemplated by this Agreement.
(k) Neither Parent nor any Subsidiary has any obligation to provide, and no Parent Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(l) Each Parent Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and proposed and final regulations) thereunder, except for failures to comply therewith that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(m) No Parent Plan is maintained outside the jurisdiction of the United States or covers any employee of Parent or any of its Subsidiaries who resides or works outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Eclipse Resources Corp), Voting Agreement (Eclipse Resources Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the Parent material Company Plans and (or, in the most current version case of any Company Plan not in writing, a written description of the material terms thereof) and related trust contracts, instruments or agreements, including administrative service agreements and group insurance contracts contracts, trust documents, and most recently received Internal Revenue Service favorable determination letter or other funding arrangementsopinion letter, summary plan descriptionsas applicable, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and summary plan description and any summary of material modifications required under ERISA with respect to each Company Plan, and all material non-routine correspondence to or from any Governmental Entity, including with respect to any audit of or proceeding involving such plan or alleged noncompliance of such plan with applicable Laws.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened Threatened against, the Company or with respect toany of its Subsidiaries, or any fiduciary of any of the Parent Company Plans, with respect to any Company Plan, and there are no Proceedings by a Governmental Entity with respect to any of the Company Plans, except for such pending actions, suits suits, claims or claims Proceedings that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) All material contributions required to be made by the Company to the Company Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all material contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(ef) None Each ERISA Plan of Parent the Company and its Subsidiaries that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification or tax exemption of any such Company Plan. With respect to any ERISA Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax or penalty imposed pursuant to Section 4975 or 4976 of the Code in a material amount.
(g) None of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 Aggregated Group contributes to or has has, during the last six years, had an obligation to contribute to, and no Parent Company Plan is, (i) a defined benefit pension plan subject to Section 302 or Title IV of ERISA and/or or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISA, (iii) a “multiple employer plan plan” as described defined in Section 413(c) of the Code, or (iv) a “multiple employer welfare arrangement (arrangement” within the meaning of ERISA Section 3(40))) of ERISA.
(h) Except as required by applicable Law, no Company Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions would, either alone or in combination with another event, (i) entitle any Company Employee to severance pay or benefits or to any material increase in severance pay or benefits, (ii) accelerate the time of payment or vesting, or increase the amount of or the funding of any compensation or benefits due to any such Company Employee, (iii) directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Plan, (iv) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (v) result in any “excess parachute payment” within the meaning of Section 280G of the Code.
(j) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) No Company Plan is maintained outside the jurisdiction of the United States or covers any Company Employees who reside or work outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Arch Resources, Inc.), Merger Agreement (CONSOL Energy Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives.
(b) Each Parent Benefit Plan has been established, registered (where required), funded, administered, funded (if applicable) invested and maintained in compliance in all material respects with its terms and all applicable Laws, including, to the extent applicable, ERISA and the Code, and in accordance with its terms, except where the failure to do so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(cb) As of Except as would not reasonably be expected to have, individually or in the date of this Agreementaggregate, a Parent Material Adverse Effect: (i) there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Benefit Plans, and there are no Proceedings initiated or reasonably expected to be initiated by a Governmental Entity, or any other party, with respect to any of the Parent Benefit Plans and (ii) as of the date of this Agreement, neither Parent nor any of its Subsidiaries has any liability (nor reasonably expects to incur any material liability) for any assessment, excise or penalty taxes with respect to any Parent Benefit Plan.
(c) All material contributions or premiums required to be made by Parent or any of its Subsidiaries to the Parent Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP, except for such pending actions, suits or claims that as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There are no Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Parent Benefit Plan. With respect to any Parent Benefit Plan, none of Parent or any of its Subsidiaries, or, to the knowledge of Parent, any other Person, has engaged in a transaction in connection with which Parent or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Parent and its Subsidiaries do not have any material unfunded benefit obligations that have liability (whether or not been properly accrued for in Parent’s financial statements assessed) under Sections 4980B, 4980D, 4980H, 6721 or disclosed in 6722 of the notes thereto in accordance with GAAPCode.
(e) None of Parent or Parent, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, : (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code; (ii) a “registered pension plan” or “multi-employer pension plan” that contains a “defined benefit provision” within, in each case, the meaning of the Tax Act; or (iii) a multiple multi-employer pension plan as described such term is defined under the Pension Benefits Standards Act (Canada) or any similar plan for purposes of pension standards legislation of another Canadian jurisdiction.
(f) Other than continuation coverage pursuant to Section 4980B of the Code or any other applicable Law for which the recipient pays the full premium cost of coverage, no Parent Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person and neither Parent nor any of its Subsidiaries has any liability to provide post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person or ever represented, promised or contracted to any Person that such Person would be provided with such benefits.
(g) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (A) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee or other current or former director, officer, employee or independent contractor of Parent or any Subsidiary under any Parent Benefit Plan, (B) directly or indirectly cause Parent to transfer or set aside any material amount of assets to fund any material benefits under any Parent Benefit Plan, (C) limit or restrict the right to materially amend, terminate or transfer the assets of any Parent Benefit Plan on or following the Effective Date, or (D) result in any payment from Parent or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Parent or any of its Subsidiaries that would, individually or in combination with any other such payment from Parent or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 413(c280G(b)(1) of the Code).
(h) Neither Parent nor any Subsidiary of Parent has any obligation to provide, and no Parent Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(i) Each Parent Benefit Plan or any other agreement, arrangement, or (iv) plan of Parent or any of its Subsidiaries that constitutes in any part a multiple employer welfare arrangement (nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
Appears in 2 contracts
Sources: Arrangement Agreement (Chord Energy Corp), Arrangement Agreement (ENERPLUS Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Parent Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a description if such plan is not written) of each of the material Parent Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each , along with the most recent report filed on Form 5500 and summary plan description with respect to each Parent Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectBenefit Plan.
(c) As of Each Parent Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the date of this Agreement, there Code.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPParent Benefit Plans.
(e) None All material contributions required to be made by Parent or any of its Subsidiaries to the Parent Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of Parent, nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Parent Benefit Plan. With respect to any Parent Benefit Plan or an Employee Benefit Plan sponsored, maintained or contributed to by a member of the Parent’s Aggregated Group, none of Parent or any of its Subsidiaries, or, to the knowledge of Parent, any other Person or member of the Parent’s Aggregated Group, has engaged in a transaction in connection with which Parent, its Subsidiaries or a member of the Parent’s Aggregated Group reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Parent and its Subsidiaries do not have any entity which would be deemed to be a single employer with Parent material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent, any of its Subsidiaries under Code Section 414 or any member of their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Parent Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person (the entire cost of which is paid by such Person).
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee of Parent or any Subsidiary thereof or other current or former director, officer, employee or independent contractor under any Parent Benefit Plan, (ii) directly or indirectly cause Parent to transfer or set aside any material amount of assets to fund any material benefits under any Parent Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Parent Benefit Plan on or following the CodeEffective Time, or (iv) result in any payment from Parent or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of the Company or any of its Subsidiaries that would, individually or in combination with any other such payment from Parent or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither Parent nor any Subsidiary of Parent has any obligation to provide, and no Parent Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Parent Benefit Plan or any other agreement, arrangement, or plan of Parent or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Parent Benefit Plan is maintained outside the jurisdiction of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (Extraction Oil & Gas, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a3.10(a) of the Parent Contributor Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Contributor Plans.
(the “Parent Plans”). b) True, correct correct, and complete copies of each of the Parent material Contributor Plans and the most current version of any related trust agreements, insurance contracts documents or other funding arrangements, summary plan descriptions, arrangements and the most recent Form 5500 filing and the most current version of any applicable IRS determination letters favorable determination, advisory, or opinion letters, if applicable, have been furnished or made available to the Company or its Representatives, along with, to the extent applicable, the most recent report filed on Form 5500 (with all schedules and attachments), the most recent summary plan description (with all summaries of material modifications thereto), the most recent financial statements and actuarial or other valuation reports, and all material non-routine correspondence to or from any Governmental Entity received in the last three years.
(bc) Each Parent Contributor Plan has been established, administered, funded (if applicable) operated, funded, and maintained in material compliance with its terms and in compliance in all material respects with all applicable Laws, except where including ERISA and the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectCode.
(cd) As of the date of this Agreement, there There are no actions, suits or claims material Proceedings pending (other than routine claims for benefits) or, to the knowledge of ParentContributor’s Knowledge, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits Contributor Plans or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAPassets thereof.
(e) None of Parent All material contributions required to be made by Contributor or any of its the Contributor Subsidiaries to the Contributor Plans pursuant to their terms or any entity which would be deemed applicable Law have been timely made.
(f) Each Contributor Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and has received a single employer favorable determination letter (or in the case of a master/prototype or volume submitter plan, a favorable opinion or advisory letter) as to its qualification under the Code and, to Contributor’s Knowledge, nothing has occurred, whether by action or failure to act, that could reasonably be expected to adversely affect the qualification of such Contributor Plan. With respect to each Contributor Plan, neither Contributor nor any of the Contributor Subsidiaries, or, to Contributor’s Knowledge, any other Person, has engaged in a transaction in connection with Parent which Contributor or any of its the Contributor Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would be material. Contributor and the Contributor Subsidiaries do not have any material liability (whether or not assessed) under Code Section 414 Sections 4980B, 4980D, or 4980H of the Code.
(g) Neither Contributor nor any of the Contributor Subsidiaries sponsors, maintains, contributes to to, or has an obligation to contribute to (or has in the last six years sponsored, maintained, contributed to, or had an obligation to contribute to), or has any current or contingent liability or obligation under or with respect to, and no Parent Contributor Plan is, : (i) a plan “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) an Employee Benefit Plan that is or was subject to Title IV of ERISA and/or ERISA, Section 302 of ERISA, or Section 412 or 4971 of the Code, (iiiii) a multiemployer plan within the meaning of “multiple employer welfare arrangement” (as defined in Section 3(373(40)(A) of ERISA), (iiiiv) a multiple employer plan as described in Section 413(c) of the Code, or (ivv) a multiple employer welfare arrangement “multiemployer plan” (within the meaning of ERISA 3(40)Section 3(37) of ERISA).
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Contributor Plan provides any retiree or post-employment or post-service medical or life insurance benefits to any Person, and neither Contributor nor any of the Contributor Subsidiaries has any obligation to provide such benefits.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any current or former Contributor or Contributor Subsidiary employee, director, or other service provider of Contributor or any of the Contributor Subsidiaries to severance pay, any increase in severance pay, or any other payment; (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any current or former Contributor or Contributor Subsidiary employee, director, or other individual service provider of Contributor or any of the Contributor Subsidiaries; (iii) directly or indirectly cause or require Contributor to transfer or set aside any amount of assets to fund any benefits under any Contributor Plan; or (iv) limit or restrict the right to amend, terminate, or transfer the assets of any Contributor Plan on or following the Closing.
(j) No amount or benefits that would be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by a current or former employee, director or other service provider of the Contributor or any Contributor Subsidiary who is a “disqualified individual” (within the meaning of Section 280G of the Code) would reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the transactions contemplated by this Agreement.
(k) Each Contributor Plan or any other agreement, arrangement, or plan of Contributor or any of the Contributor Subsidiaries that constitutes, in any part, a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) has been operated and maintained in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No current or former employee, director or other service provider of the Contributor or any Contributor Subsidiary is entitled to a gross-up, make-whole, reimbursement or indemnification payment with respect to Taxes imposed under Section 409A or Section 4999 of the Code.
(m) No Contributor Plan is maintained outside the jurisdiction of the United States or covers any employees or other service providers of Contributor or any of the Contributor Subsidiaries who reside or perform services primarily outside of the United States.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and (or, in the most current version case of any Company Plan not in writing, a description of the material terms thereof) and related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Plan required to file a Form 5500, and all material correspondence to or from any Governmental Entity received in the last two years.
(bc) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of the date of this Agreement, there There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, and there are no Proceedings by a Governmental Entity with respect to any of the Company Plans, except for such pending actions, suits suits, claims or claims Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) All material contributions required to be made by the Company to the Company Plans pursuant to their terms have been timely made.
(f) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(eg) None Each ERISA Plan that is intended to be qualified under Section 401(a) of Parent the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan. With respect to any ERISA Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material.
(h) None of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 Aggregated Group contributes to or has ever had an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(i) Except as required by applicable Law, no Company Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any Company Employee to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any such Company Employee, (iii) a multiple employer plan as described directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Plan, (iv) otherwise give rise to any material liability under any Company Plan, (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (vi) result in any “excess parachute payment” within the meaning of Section 413(c) 280G of the Code, or (iv) a multiple employer welfare arrangement . Copies of Section 280G calculations with respect to any “disqualified individual” (within the meaning of ERISA 3(40))Section 280G of the Code) in connection with the Transactions, either alone or in combination with another event, have been furnished or made available to Parent or its Representatives.
(k) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(l) No Company Plan is maintained outside the jurisdiction of the United States or covers any Company Employees who reside or work outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Conocophillips), Merger Agreement (Concho Resources Inc)
Compensation Benefits. (ai) Set forth on Schedule 5.10(aEach benefit or compensation plan, program, agreement, policy, contract or arrangement with respect to which PlasChem has any material liability or obligation (each, a “PlasChem Benefit Plan”) of the Parent Disclosure Letter is a listhas been established, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct funded and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives.
(b) Each Parent Plan has been administered, funded (if applicable) and maintained administered in compliance with its terms, the terms of any applicable collective bargaining agreement, and with all applicable Lawslaws, except where the failure to so comply would not be reasonably be expected likely to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cii) As of the date of this Agreement, there There are no material actions, suits suits, proceedings, audits, investigations, litigation or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent PlasChem Benefit Plans, except for and, to the knowledge of the Company, there are no facts or circumstances that would give rise to any such pending actions, suits suits, proceedings, audits, investigations, litigation or claims that claims.
(iii) With respect to each PlasChem Benefit Plan, except where the failure to take such action would not be reasonably be expected likely to have, individually or in the aggregate, a Parent Company Material Adverse Effect, (i) all contributions, distributions, reimbursements and premium payments that are due have been timely made, and (ii) all contributions, distributions, reimbursements and premium payments for any period ending on or before the Closing Date that are not yet due have been timely made or properly accrued.
(div) There are no material unfunded benefit obligations under any PlasChem Benefit Plan that have not been properly accrued for in ParentPlasChem’s financial statements or disclosed in the notes thereto in accordance with GAAPapplicable law.
(ev) None of Parent No PlasChem Benefit Plan provides, and PlasChem does not have any obligation to provide, any material post-termination or post-employment medical, health, life insurance or other welfare benefits to any employees, former employees, directors, service providers or any other Person.
(vi) No PlasChem Benefit Plan is a defined benefit-type plan or, if maintained by PlasChem or any of its Subsidiaries and is not fully insured or any entity which would be deemed required under applicable law to be funded, has any material unfunded or underfunded liabilities in accordance with applicable law. Except where the failure to take such action would not be reasonably likely to have, individually or in the aggregate, a single employer Company Material Adverse Effect, PlasChem has timely made all contributions required to have been made by it with Parent respect to any plan established and maintained by a Governmental Entity, except for any failure to make such contributions that would not result in a material liability to PlasChem.
(vii) Neither the execution of this Agreement, nor the consummation of the transactions contemplated hereby (either alone or in combination with any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Plan is, other event) will (i) a plan subject give rise to Title IV of ERISA and/or Section 412 of the Codeany liability under any PlasChem Benefit Plan, including liability for severance pay, unemployment compensation, termination pay or withdrawal liability or (ii) a multiemployer plan within accelerate the meaning time of Section 3(37payment, funding or vesting or increase the amount of compensation or benefits due to any employee, officer, director, stockholder or other service provider of PlasChem (whether current, former or retired) of ERISA, (iii) a multiple employer plan as described in Section 413(c) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40))its beneficiaries.
Appears in 2 contracts
Sources: Merger Agreement (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and (or, in the most current version case of any material Company Plan not in writing, a description of the material terms thereof) and related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent summary plan description with respect to each Company Plan and most recently prepared financial statements and actuarial reports (if any).
(bc) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect. Each Company Plan that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code complies and has complied, both in form and operation, with the requirements of Section 409A of the Code and the final regulations and other applicable guidance thereunder.
(cd) As of the date of this Agreement, there There are no actions, suits or claims Proceedings pending (other than routine claims for benefits) or, to the knowledge Knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in Company Plans within the aggregate, a Parent Material Adverse Effectpast three (3) years.
(de) All material contributions required to be made by the Company to the Company Plans pursuant to their terms have been timely made in all material respects.
(f) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(eg) None Each Company Plan that is intended to be qualified under Section 401(a) of Parent the Code has received a favorable determination letter from the Internal Revenue Service or may rely on an opinion or advisory letter from the Internal Revenue Service as to its qualified status and, to the Knowledge of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan. With respect to any Company Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(h) Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter, none of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 Aggregated Group sponsors, maintains, contributes to or has ever in the past six (6) years sponsored, maintained or had an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 or 4971 of the Code. Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter, with respect to each Company Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) the fair market value of the assets of such Company Plan equals or exceeds the actuarial present value of all accrued benefits under such Company Plan (whether or not vested) on a termination basis; (iii) within the past six (6) years, no reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30)-day notice requirement has not been waived has occurred, and the consummation of the Transactions will not result in the occurrence of any such reportable event; (iv) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full in all material respects; (v) no material liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its Subsidiaries; and (vi) the PBGC has not instituted proceedings to terminate any such Company Plan and, to the Company’s Knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Plan. Neither the Company nor any Affiliate has engaged in, or is a successor or affiliate of an entity that has engaged in, a transaction that is described in Section 4069 or Section 4212(c) of ERISA.
(i) Except as required by applicable Law or as set forth on Schedule 4.10(i) of the Company Disclosure Letter, no Company Plan provides retiree or post-employment health, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any employee or other service provider of the Company or its Subsidiaries to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee or other service provider, (iii) a multiple employer plan as described in Section 413(c) directly or indirectly cause the Company to transfer or set aside any material amount of the Codeassets to fund any benefits under any Company Plan, or (iv) a multiple employer welfare arrangement otherwise give rise to any material liability under any Company Plan, (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (vi) result in any “excess parachute payment” within the meaning of ERISA 3(40Section 280G of the Code.
(k) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code. Except as set forth on Schedule 4.10(k) of the Company Disclosure Letter, no material Company Plan is maintained outside the jurisdiction of the United States or covers any employee or other service provider of the Company or its Subsidiaries who resides or works outside of the United States (each a “Non-U.S. Plan”)). No Non-U.S. Plan is a defined benefit pension plan. Each Non-U.S. Plan (i) has been maintained in accordance with all applicable requirements; (ii) if intended to qualify for special tax treatment, meets all requirements for such treatment; and (iii) if required to be funded and/or book-reserved, is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Sources: Merger Agreement (Cleanspark, Inc.), Merger Agreement (Cleanspark, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a description if such plan is not written) of each of the Parent material Company Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent , along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectCompany Benefit Plan.
(c) As of Each Company Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the date of this Agreement, there Code.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPCompany Benefit Plans.
(e) All material contributions required to be made by the Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan or any Employee Benefit Plan sponsored, maintained or contributed to by a member of the Company’s Aggregated Group, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person or member of the Company’s Aggregated Group, has engaged in a transaction in connection with which the Company, its Subsidiaries or a member of the Company’s Aggregated Group reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or the Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(374001(a)(3) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Company Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person (the entire cost of which is paid by the Person).
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any Company Employee or other current or former director, officer, employee or independent contractor under any Company Benefit Plan, (ii) directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any benefits under any Company Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the CodeEffective Time, or (iv) result in any payment from the Company or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of the Company or any of its Subsidiaries that would, individually or in combination with any other such payment from the Company or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither the Company nor any Subsidiary of the Company has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Company Benefit Plan or any other agreement, arrangement, or plan of the Company or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any Company Employees who reside or work outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (Extraction Oil & Gas, Inc.)
Compensation Benefits. (ai) Set forth on Schedule 5.10(a3.1(m) of the Parent Company Disclosure Letter Schedule is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with Plans. With respect to which Parent each Employee Benefit Plan, the Company has furnished or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services made available to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct true and complete copies of each of the Parent Plans following documents, as applicable: (A) each plan document (or, if not written, a written summary of its material terms) and the most current version of any related trust agreementsamendments, insurance contracts or other funding arrangements, (B) all summary plan descriptions, (C) the most recent annual report (Form 5500 filing series or equivalent if required under applicable Law), including all exhibits and attachments thereto, (D) the most current version of recent determination or opinion letter, if any, issued by the Internal Revenue Service (the “IRS”) and any applicable IRS determination letters have been furnished pending request for such a letter, (E) any material correspondence with, and all non-routine filings made within the past three years with, any Governmental Authority, (F) the most recent audited financial statements and actuarial or made available to the Company or its Representativesother valuation reports prepared with respect thereto, and (G) all related administrative service agreements.
(bii) Each Parent No Employee Benefit Plan has been administeredis a “multiemployer plan” (as defined in Section 3(37) of ERISA), funded and the Company, its Subsidiaries and the Company ERISA Affiliates have no unpaid or unsatisfied obligation with respect to any withdrawal liability (if applicablewithin the meaning of Section 4201 of ERISA).
(iii) and maintained in compliance with its terms and all applicable LawsNo Employee Benefit Plan is subject to Title IV or ERISA, except where Section 302 of ERISA or Section 412 of the failure to so comply Code.
(iv) Except for such failures that would not be reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect:
(A) Each Employee Benefit Plan has been maintained in compliance with applicable Law and in accordance with its terms.
(cB) As of the date of this Agreement, there There are no actions, suits or claims Proceedings pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits Employee Benefit Plans or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effecttheir assets.
(dC) All contributions required to be made to the Employee Benefit Plans (or related trusts, insurance contracts or funds) pursuant to their terms and applicable Law have been timely made.
(D) There are no material unfunded benefit obligations under the Employee Benefit Plans that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eE) Each Employee Benefit Plan intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter or opinion letter from the IRS as to its qualification under Section 401(a) of the Code and to the effect that each such trust is exempt from taxation under Section 501(a) of the Code, and nothing has occurred since the date of such determination letter or opinion letter that has had an adverse impact on such qualification or tax-exempt status.
(F) Neither the Company nor any of its Subsidiaries is or could be reasonably subject to a liability, penalty or Tax pursuant to Section 409 of ERISA, Section 502 of ERISA or Chapter 43 of Subtitle D of the Code.
(G) Except as required under Section 601 et seq. of ERISA, no Employee Benefit Plan provides health, disability or life insurance benefits following retirement of other termination of employment.
(v) Neither the Company nor any of its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any plan or agreement that under certain circumstances could obligate it to make any payments that would not be deductible under Sections 280G (determined without regard to the exceptions contained in Sections 280G(b)(4) and 280G(b)(5)) or 404 of the Code.
(vi) None of Parent or the Company, any of its Subsidiaries or any entity Company ERISA Affiliate is a party to any agreement with the Pension Benefit Guaranty Corporation respecting any Employee Benefit Plan or respecting any employee pension benefit plan, within the meaning of Section 3(2) of ERISA, that is not an Employee Benefit Plan, which would be deemed agreement contains obligations or covenants respecting the Company, any of its Subsidiaries or any Company ERISA Affiliate that continue beyond the date of this Agreement.
(vii) Except as set forth on Schedule 3.1(m) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement do not, and the consummation of the Merger and compliance with the terms hereof (whether alone or in combination with any other event) will not, (A) entitle any current or former employee or director of the Company or any Subsidiary of the Company to be severance pay, unemployment compensation or any other payment; (B) except as expressly required by this Agreement, accelerate the time of payment or vesting or trigger any payment or funding (through a single employer with Parent grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Employee Benefit Plan or any other compensatory arrangement to which the Company or any of its Subsidiaries under Code Section 414 contributes to is a party; (C) result in any breach or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISA, (iii) a multiple employer plan as described in Section 413(c) of the Codeviolation of, or a default under, any Employee Benefit Plan or any other compensatory arrangement to which the Company or any of its Subsidiaries is a party; or (ivD) otherwise give rise to any material liability under an Employee Benefit Plan or any other compensatory arrangement to which the Company or any of its Subsidiaries is a multiple employer welfare arrangement (within the meaning of ERISA 3(40))party.
Appears in 2 contracts
Sources: Merger Agreement (Energy Xxi (Bermuda) LTD), Merger Agreement (Epl Oil & Gas, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and the most current version of any related trust agreements, insurance contracts documents or other funding arrangements, summary plan descriptions, arrangements and the most recent Form 5500 filing and the most current version of any applicable IRS determination letters favorable determination, advisory or opinion letters, if applicable, have been furnished or made available to the Company Parent or its Representatives, along with, to the extent applicable, the most recent report filed on Form 5500 (with all schedules and attachments) and summary plan description (with all summaries of material modifications thereto) and all material correspondence to or from any Governmental Entity received in the last three years.
(bc) Each Parent Company Plan has been established, administered, operated, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of the date of this Agreement, there There are no actions, suits or claims Proceedings pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) There are no All material unfunded benefit obligations that contributions required to be made by the Company or any of its Subsidiaries to the Company Plans pursuant to their terms or applicable Law have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAPtimely made.
(ef) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan. With respect to any Company Plan, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person, has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or the Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a “multiemployer plan plan” within the meaning of Section 3(37) of ERISA), (iii) Section 302 of ERISA, or Section 412 of the Code. No Company Plan is a “multiple employer plan as described in plan” within the meaning of Section 413(c) of the Code, Code or (iv) a “multiple employer welfare arrangement (arrangement” within the meaning of ERISA Section 3(40)) of ERISA.
(h) Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter, other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law and for which the recipient pays the full premium cost of coverage, no Company Plan provides retiree or post-employment or post-service medical or life insurance to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(i) Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter or pursuant to the terms of Schedule 6.9(a) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any Company Employee to severance pay or any increase in severance pay, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such Company Employee, (iii) directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Plan, (iv) otherwise give rise to any material liability under any Company Plan,(v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time, or (vi) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) of the Company or any of its Subsidiaries that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Each Company Plan or any other agreement, arrangement, or plan of the Company or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(k) No Company Plan is maintained outside the jurisdiction of the United States or covers any Company Employees who reside or work outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Jagged Peak Energy Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) 4.10 of the Parent Company Disclosure Letter is sets forth a list, as list of the date hereof, of all of the each material Employee Benefit Plans Plan sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent material Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, including (i) all governing plan documents (including amendments), (ii) all trust agreement or other funding arrangements (including insurance contracts), (iii) the most recent IRS determination or opinion letter, (iv) the most recent summary plan descriptions, (v) annual reports or returns, audited or unaudited financial statements, and actuarial valuations for the most recent three (3) plan years, and (vi) non-discrimination testing data and reports for the two most recently completed plan years.
(b) Each Parent Company Plan has been administeredestablished, funded (if applicable) and maintained administered in compliance in all material respects with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there . There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans. All Company Plans that are intended to be subject to the tax qualification requirements of Code Section 401(a) are so qualified and have received a favorable determination letter from the IRS or is maintained pursuant to a pre-approved plan where the Company is entitled to rely on a favorable opinion letter from the IRS. All contributions to, except for such pending actionsand payments from, suits each Company Plan have been timely made.
(c) Neither the Company nor its ERISA Affiliates have at any time sponsored, contributed to, or claims that would not reasonably be expected been obligated under Title I or Title IV of ERISA to have, individually contribute to a “defined benefit plan” (as defined in ERISA Section 3(35)). Neither the Company nor its ERISA Affiliates have ever had an “obligation to contribute” (as defined in ERISA Section 4212) to a “multiemployer plan” (as defined in ERISA Section 4001(a)(3) and 3(37)(A)). No Company Plan is a “multiple employer plan” (meaning a plan sponsored by two or more unrelated employers) or a “multiple employer welfare arrangement” (as defined in ERISA Section 3(40). The Company has no liability under Title IV of ERISA or Code Section 412 either directly or through its ERISA Affiliates. Neither the Company nor its ERISA Affiliates have maintained in the aggregatepast nor currently maintain an Employee Benefit Plan providing welfare benefits (as defined in ERISA Section 3(1)) to employees after retirement or other separation of service except to the extent required under Part 6 of Title I of ERISA or Code Section 4980B or their successors or other applicable Law. The Company has complied in all material respects with the continuation coverage requirements of Section 1001 of COBRA, a Parent Material Adverse Effectand ERISA Sections 601 through 608.
(d) There are no material unfunded benefit obligations that have not been properly accrued Except as otherwise provided for in Parent’s financial statements this Agreement or disclosed as set forth in Schedule 4.10(d) of the notes thereto Company Disclosure Letter, neither the execution of this Agreement, stockholder approval of this Agreement, or consummation of the transactions contemplated by this Agreement (individually or in accordance conjunction with GAAP.
any other event) will (ei) None of Parent entitle any current or former service provider to the Company or any of its Subsidiaries to retention or other bonuses, parachute payments, non-competition payments, or any entity which would be deemed other payment, (ii) entitle any current or former service provider to be a single employer with Parent the Company or any of its Subsidiaries under Code Section 414 contributes to unemployment compensation, severance pay, or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV any increase in severance pay upon any termination of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISAemployment, (iii) result in any breach or violation of, or a multiple employer plan as described default under, any of the Company Plans, (iv) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation of benefits under or increase the amount of compensation due to any individual service provider to the Company or any of its Subsidiaries, (v) give rise to any payment or benefit that would not be deductible in whole or in part by reason of Section 413(c) 280G of the Code, or (ivvi) limit or restrict the right of the Company or any of its Subsidiaries or, after the consummation of the transactions contemplated hereby, the Company or the Surviving Company, to merge, amend or terminate any of the Company Plans.
(e) Each Company Plan that is a multiple employer welfare non-qualified deferred compensation plan or arrangement (within the meaning of ERISA 3(40))Section 409A of the Code, and any underlying award, is in compliance in all material respects with Section 409A of the Code, and no payment or award that has been made to any participant under a Company Plan is subject to the interest and penalties specified in Section 409A(a)(1)(B) of the Code. Neither the Company nor any of its Subsidiaries (x) has an obligation to reimburse or indemnify any participant in a Company Plan for any of the interest or penalties specified in Section 409A(a)(1)(B) of the Code that may be currently due or triggered in the future, and (y) has been required to report to any Governmental Entity any correction or taxes due as a result of a failure to comply with Section 409A of the Code.
(f) No Company Plan provides for the gross-up or reimbursement of any Taxes imposed by Section 4999 of the Code or otherwise, and neither the Company nor any of its Subsidiaries has any obligation to reimburse or indemnify any party for such Taxes.
Appears in 2 contracts
Sources: Merger Agreement (Western Asset Mortgage Capital Corp), Merger Agreement (AG Mortgage Investment Trust, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and the most current version of any related trust agreementsdocuments and favorable determination or opinion letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Plan required to file a Form 5500, and all material correspondence to or from any Governmental Entity received in the last two years.
(bc) Each Parent Company Plan has been administered, funded (if applicable) maintained and maintained administered in compliance in all respects with its terms and all applicable Laws, including ERISA and the Code, except where the failure for failures to so comply with such Laws that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, and there are no Proceedings by a Governmental Entity with respect to any of the Company Plans, except for such pending actions, suits suits, claims or claims Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all material contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(ef) None Each Company Plan that is intended to be a qualified plan under Section 401(a) of Parent the Code has been determined by the Internal Revenue Service to be so qualified and, to the knowledge of the Company, nothing has occurred since such determination by the Internal Revenue Service that would adversely affect such qualification.
(g) There have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Part 4 of Subtitle B of Title I of ERISA in connection with any Company Plan that could subject the Company or any of its Subsidiaries to a material tax or penalty imposed under Section 4975 of the Code or Section 502(i) of ERISA.
(h) No Company Plan is, and none of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 contributes to or Aggregated Group has an obligation to contribute any liability with respect to, and no Parent Plan is, (i) a plan subject to Title IV or Section 302 of ERISA and/or or Section 412 of the Code, (ii) a “multiemployer plan plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA, (iii) a “multiple employer plan as described in plan” within the meaning of Section 413(c) of the Code, or (iv) a “multiple employer welfare arrangement arrangement” (as defined in Section 3(40) of ERISA).
(i) Except as required by applicable Law, no Company Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any individual who is employed as of the Closing Date by the Company or a Subsidiary thereof (a “Company Employee”) to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any such Company Employee, (iii) directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Plan, (iv) otherwise give rise to any material liability under any Company Plan, (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (vi) result in an “excess parachute payment” within the meaning of ERISA 3(40))Section 280G(b) of the Code.
(k) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(l) Each Company Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and proposed and final regulations) thereunder, except for failures to comply therewith that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(m) No Company Plan is maintained outside the jurisdiction of the United States or covers any employee of the Company or any of its Subsidiaries who resides or works outside of the United States.
Appears in 2 contracts
Sources: Merger Agreement (Eclipse Resources Corp), Voting Agreement (Eclipse Resources Corp)
Compensation Benefits. (a) Set forth on Schedule in Section 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries has, or could reasonably be expected to have have, any material liability (such Employee Benefit Plans, whether or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (not material, the “Parent Plans”). True, correct and complete copies of each of the Parent Plans (or, in the case of any unwritten Parent Plan, a written description thereof) and any amendments thereto and, as applicable, the most current version versions of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Parent Plan, in each case, have been furnished or made available to the Company or its Representatives.
(b) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) All material contributions required to be made to the Parent Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations with respect to any Parent Plan that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Neither Parent or nor any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 their ERISA Affiliates contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except as contemplated by this Agreement or set forth in Section 5.10(g) of the Parent Disclosure Letter, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from Parent or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their respective officers, employees or consultants, (ii) materially increase any benefits otherwise payable under any Parent Plan, (iii) a multiple employer plan as described to the knowledge of Parent, result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Parent Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any employee, director or consultant of Parent or its Subsidiaries or (iv) a multiple employer welfare arrangement (within limit or restrict the meaning right of ERISA 3(40))Parent or any of its Subsidiaries to merge, amend or terminate any Parent Plan.
Appears in 2 contracts
Sources: Merger Agreement (Great Ajax Corp.), Merger Agreement (Ellington Financial Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and (or, in the most current version case of any material Company Plan not in writing, a description of the material terms thereof) and related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent summary plan description with respect to each Company Plan and most recently prepared financial statements and actuarial reports (if any).
(bc) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect. Each Company Plan that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code complies and has complied, both in form and operation, with the requirements of Section 409A of the Code and the final regulations and other applicable guidance thereunder.
(cd) As of the date of this Agreement, there There are no actions, suits or claims Proceedings pending (other than routine claims for benefits) or, to the knowledge Knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in Company Plans within the aggregate, a Parent Material Adverse Effectpast three (3) years.
(de) All material contributions required to be made by the Company to the Company Plans pursuant to their terms have been timely made in all material respects.
(f) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(eg) None Each Company Plan that is intended to be qualified under Section 401(a) of Parent the Code has received a favorable determination letter from the Internal Revenue Service or may rely on an opinion or advisory letter from the Internal Revenue Service as to its qualified status and, to the Knowledge of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan. With respect to any Company Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(h) Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter, none of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 Aggregated Group sponsors, maintains, contributes to or has ever in the past six (6) years sponsored, maintained or had an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 or 4971 of the Code. Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter, with respect to each Company Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) the fair market value of the assets of such Company Plan equals or exceeds the actuarial present value of all accrued benefits under such Company Plan (whether or not vested) on a termination basis; (iii) within the past six (6) years, no reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30)-day notice requirement has not been waived has occurred, and the consummation of the Transactions will not result in the occurrence of any such reportable event; (iv) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full in all material respects; (v) no material liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its Subsidiaries; and (vi) the PBGC has not instituted proceedings to terminate any such Company Plan and, to the Company’s Knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Plan. Neither the Company nor any Affiliate has engaged in, or is a successor or affiliate of an entity that has engaged in, a transaction that is described in Section 4069 or Section 4212(c) of ERISA. 20
(i) Except as required by applicable Law or as set forth on Schedule 4.10(i) of the Company Disclosure Letter, no Company Plan provides retiree or post-employment health, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any employee or other service provider of the Company or its Subsidiaries to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee or other service provider, (iii) a multiple employer plan as described in Section 413(c) directly or indirectly cause the Company to transfer or set aside any material amount of the Codeassets to fund any benefits under any Company Plan, or (iv) a multiple employer welfare arrangement otherwise give rise to any material liability under any Company Plan, (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (vi) result in any “excess parachute payment” within the meaning of ERISA 3(40Section 280G of the Code.
(k) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code. Except as set forth on Schedule 4.10(k) of the Company Disclosure Letter, no material Company Plan is maintained outside the jurisdiction of the United States or covers any employee or other service provider of the Company or its Subsidiaries who resides or works outside of the United States (each a “Non-U.S. Plan”)). No Non-U.S. Plan is a defined benefit pension plan. Each Non-U.S. Plan (i) has been maintained in accordance with all applicable requirements; (ii) if intended to qualify for special tax treatment, meets all requirements for such treatment; and (iii) if required to be funded and/or book-reserved, is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Sources: Merger Agreement (GRIID Infrastructure Inc.), Merger Agreement (GRIID Infrastructure Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsoredCompany Plans. Each Company Plan is exclusive to the Company and its Subsidiaries, maintained, and no Company Plan covers or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide provides benefits to any Company Agent (other than a Company Agent who is an employee of the Company or its Subsidiaries) or any other individual performing services to Parent who is not a current or former employee of the Company or any of its Subsidiaries (the “Parent Plans”or an eligible dependent or beneficiary thereof). True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives.
(b) Each Parent Company Plan has been administeredestablished, maintained, funded (if applicable) and maintained administered in compliance accordance with its terms and in compliance with all applicable Laws, including ERISA and the Code, except where the failure to so comply as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect. Each Company Plan that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code complies and has complied, both in form and operation, with the requirements of Section 409A of the Code and the final regulations and other applicable guidance thereunder.
(c) As of the date of this Agreement, there There are no actions, suits Proceedings or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Plans, Company Plans except for such pending actions, suits Proceedings or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) All contributions and other payments required to be made by the Company or any of its Subsidiaries with respect to each of the Company Plans pursuant to its terms and applicable Laws or that are required to be made to any Governmental Entity that have become due have been timely made or paid in all material respects or, if not yet due, properly accrued in all material respects.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(ef) None Each Company Plan that is intended to be qualified under Section 401(a) of Parent the Code has received a favorable determination letter from the Internal Revenue Service or may rely on an opinion or advisory letter from the Internal Revenue Service as to its qualified status and, to the knowledge of the Company, nothing has occurred that could adversely affect the qualification or tax exemption of any such Company Plan. With respect to any Company Plan, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other Person, has engaged in a transaction in connection with which the Company or any of its Subsidiaries or any entity which Company Plan would reasonably be deemed expected to be subject to either a single employer with Parent civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has incurred (whether or not assessed) any Tax or penalty under Code Section 414 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) Except as set forth on Schedule 4.10(g) of the Company Disclosure Letter, none of the Company, any of its Subsidiaries or any member of its Aggregated Group sponsors, maintains, contributes to, has an obligation to contribute to, or otherwise has any current or contingent liability or obligation under or with respect to, or has ever in the past six (6) years sponsored, maintained or had an obligation to contribute to, and no Parent Company Plan is, (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA) or a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412, 430 or 4971 of the Code, (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) a “multiple employer plan as described in plan” (within the meaning of Section 413(c) 210 of ERISA or Section 413 of the Code, ) or (iv) a “multiple employer welfare arrangement arrangement” (as defined in Section 3(40) of ERISA).
(h) Except as required by Section 4980B of the Code or similar state applicable Law or as set forth on Schedule 4.10(h) of the Company Disclosure Letter, no Company Plan provides retiree or post-employment health, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(i) Except as set forth on Schedule 4.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any current or former employee or other service provider of the Company or its Subsidiaries to severance pay or any increase in severance pay, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits due to any current or former employee or other service provider, (iii) directly or indirectly cause the Company to transfer or set aside any amount of assets to fund any benefits under any Company Plan, (iv) otherwise give rise to any liability under any Company Plan, (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (vi) result in any “excess parachute payment” within the meaning of Section 280G of the Code.
(j) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Except as set forth on Schedule 4.10(k) of the Company Disclosure Letter, no material Company Plan is maintained outside the jurisdiction of the United States or covers any employee or other service provider of the Company or any of its Subsidiaries who resides or works primarily outside of the United States (each, a “Non-U.S. Plan”). No Non-U.S. Plan is (or is accounted for GAAP purposes as) a defined benefit plan or has any material unfunded or underfunded liabilities. Each Non-U.S. Plan: (i) has been established, maintained, funded and administered in accordance with its terms and in compliance with all applicable Laws or other requirements; and (ii) if required to be funded and/or book-reserved, is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, in each case of the foregoing clauses (i) through (ii), except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Non-U.S. Plan intended to qualify for special tax treatment, meets all requirements for such treatment and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification or tax exemption of any such Non-U.S. Plan.
(l) With respect to each Company Plan subject to Title IV of ERISA (each, a “Title IV Plan”): (i) no reportable event (within the meaning of Section 4043 of ERISA) has occurred since the Applicable Date, or is expected to occur whether as a result of the transactions contemplated by this Agreement or otherwise; (ii) the minimum funding standard under Section 430 of the Code has been satisfied and no waiver of any minimum funding standard or extension of any amortization periods has been requested or granted; (iii) all contributions required under Section 302 of ERISA 3(40and Section 412 of the Code have been timely made in all material respects; (iv) all amounts due to the Pension Benefit Guaranty Corporation (“PBGC”) pursuant to Section 4007 of ERISA have been timely paid in all material respects; (v) with respect to each Title IV Plan for which there has been a significant reduction in the rate of future benefit accrual as referred to in Section 204(h) of ERISA, timely notice as required by Section 204(h) of ERISA has been issued; (vi) no Title IV Plan is considered to be in “at risk” status under Section 430 of the Code or has been required to apply any of the funding-based limitations under Section 436 of the Code; (vii) there has been no event described in Section 4062(e) of ERISA; (viii) no event has occurred or circumstances exist that could reasonably be expected to result in liability under Section 4069 of ERISA; and (ix) no notice of intent to terminate any Title IV Plan has been filed and no amendment to treat a Title IV Plan as terminated has been adopted and no proceeding has been commenced by the PBGC to terminate any Title IV Plan.
(m) Schedule 4.10(m) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all outstanding Company Equity Awards by holder, including (i) the type of award and number of shares of Company Common Stock related thereto (with Company PSU Awards and Performance-Vesting Cash Awards reflected at the target and maximum performance levels)), as applicable, (ii) the grant date, (iii) the exercise price and expiration date, as applicable, and (iv) the applicable vesting schedule.
Appears in 2 contracts
Sources: Merger Agreement (Compass, Inc.), Merger Agreement (Anywhere Real Estate Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(aSection 4.10(a) of the Parent Company Disclosure Letter is sets forth a listlist of each material Company Plan. For purposes of this Agreement, as of the date hereof, of all of the material “Company Plan” means each Employee Benefit Plans Plan sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide any benefits to any individual performing providing services to Parent the Company or any of its Subsidiaries (the “Parent Plans”)Subsidiaries. True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters following have been furnished or made available to the Company Parent or its RepresentativesRepresentatives with respect to each material Company Plan: (i) all governing plan documents (including amendments), (ii) all trust agreements or other funding arrangements (including insurance contracts), (iii) the most recent IRS determination or opinion letter, (iv) the most recent summary plan descriptions, (v) annual reports or returns, audited or unaudited financial statements, and actuarial valuations for the most recent three (3) years, and (vi) non-discrimination testing data and reports for the two most recently completed plan years.
(b) Each Parent Company Plan has been administeredestablished, funded (if applicable) and maintained administered in material compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there . There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans. All Company Plans that are intended to be subject to Code Section 401(a) have received a favorable determination letter from the Internal Revenue Service or are maintained pursuant to a pre-approved plan where the Company is entitled to rely on a favorable opinion letter from the Internal Revenue Service. Except as could not, except for such pending actions, suits or claims that would not reasonably be expected to have, either individually or in the aggregate, reasonably be expected to result in material liability to the Company or any of its Subsidiaries, all contributions to, and payments from, each Company Plan have been timely made.
(c) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, contributed to, or been obligated under Title I or Title IV of ERISA to contribute to a Parent Material Adverse Effect“defined benefit plan” (as defined in ERISA Section 3(35)). Neither the Company nor any of its ERISA Affiliates has ever had an “obligation to contribute” (as defined in ERISA Section 4212) to a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and 3(37)(A)). No Company Plan is a “multiple employer plan” (meaning a plan sponsored by two or more unrelated employers) or a “multiple employer welfare arrangement” (as defined in ERISA Section 3(40)). The Company has no liability under Title IV of ERISA or Code Section 412 either directly or through its ERISA Affiliates. Neither the Company nor any of its ERISA Affiliates has maintained in the past nor currently maintains an Employee Benefit Plan providing welfare benefits (as defined in ERISA Section 3(1)) to employees after retirement or other separation of service except to the extent required under Part 6 of Title I of ERISA or Code Section 4980B or their successors or other applicable Law. The Company has complied in all material respects with the continuation coverage requirements of Section 1001 of COBRA, and ERISA Sections 601 through 608.
(d) There are no material unfunded benefit obligations that have not been properly accrued Except as otherwise provided for in Parent’s financial statements this Agreement, neither the execution of this Agreement, shareholder approval of this Agreement or disclosed consummation of any of the Transactions (individually or in conjunction with any other event) will (i) entitle any current or former service provider to the notes thereto Company or any of its Subsidiaries to retention or other bonuses, parachute payments, non-competition payments, or any other compensatory payment, (ii) entitle any current or former service provider to the Company or any of its Subsidiaries to unemployment compensation, severance pay or any increase in accordance with GAAPseverance pay upon any termination of employment, (iii) result in any breach or violation of, or default under, any of the Company Plans, (iv) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount of compensation due to any individual service provider to the Company or any of its Subsidiaries, or (v) give rise to any payment or benefit that would not be deductible in whole or in part by reason of Section 280G of the Code.
(e) None of Parent Each Company Plan that is a non-qualified deferred compensation plan or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan arrangement within the meaning of Section 3(37) 409A of ERISAthe Code, (iii) and any underlying award, is in compliance in all material respects with Section 409A of the Code, and no payment or award that has been made to any participant under a multiple employer plan as described Company Plan is subject to the interest and penalties specified in Section 413(c409A(a)(1)(B) of the Code. Neither the Company nor any of its Subsidiaries (i) has any obligation to reimburse or indemnify any participant in a Company Plan for any of the interest or penalties specified in Section 409A(a)(1)(B) of the Code that may be currently due or triggered in the future, or (ivii) has been required to report to any Governmental Entity any correction or Taxes due as a multiple employer welfare arrangement result of a failure to comply with Section 409A of the Code.
(within f) No Company Plan provides for the meaning gross-up or reimbursement of ERISA 3(40))any Taxes imposed by Section 4999 of the Code or otherwise, and neither the Company nor any of its Subsidiaries has any obligation to reimburse or indemnify any party for such Taxes.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Broadmark Realty Capital Inc.), Merger Agreement (Ready Capital Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsoredPlans; provided that, maintainedwith respect to any employment, termination or contributed to by Parent severance agreement, stock option, restricted stock, restricted stock unit, phantom stock award agreement and grant notices for employees of the Company or any of its Subsidiaries and agreements with consultants entered into in the ordinary course of business, Schedule 4.10(a) of the Company Disclosure Letter shall list (i) any form thereof, (ii) in the case of any employment, termination or with respect severance agreement, the individuals party to such agreements, and (iii) any material individual agreements or grant notices that materially deviate from the applicable standard form listed in Schedule 4.10(a) of the Company Disclosure Letter, each of which Parent or any of its Subsidiaries could reasonably be expected has been made available to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Parent.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such plan is not written) of each of the Parent material Company Benefit Plans listed in Schedule 4.10(a) of the Company Disclosure Letter and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Benefit Plan required to file a Form 5500, the most recently prepared actuarial reports and financial statements, and all material correspondence to or from any Governmental Entity received in the past three (3) years addressing any matter involving actual or potential material liability relating to a Company Benefit Plan.
(bc) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Company Benefit Plan has been established, operated and administered in compliance with all applicable Laws, including ERISA, the Code and the Affordable Care Act, and with its terms.
(cd) As of Except as would not reasonably be expected to have, individually or in the date of this Agreementaggregate, a Company Material Adverse Effect, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Benefit Plans, except for such pending actions, suits or claims that and there are no Proceedings by a Governmental Entity with respect to any of the Company Benefit Plans.
(e) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in , as of the notes thereto in accordance with GAAP.
(e) None date of Parent this Agreement, all contributions required to be made by the Company or any of its Subsidiaries ERISA Affiliates to the Company Benefit Plans pursuant to their terms or any entity which would be deemed applicable Law have been made within the time periods prescribed by the terms of such plan and applicable Law or have been accrued in accordance with the terms of the applicable plan and applicable Law.
(f) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a single employer favorable determination or approval letter from the IRS with Parent respect to such qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance and, to the knowledge of the Company, no event or omission has occurred that would cause any Company Benefit Plan to lose such qualification or require corrective action to the IRS or Employee Plan Compliance Resolution System to maintain such qualification. With respect to any Company Benefit Plan, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person, has engaged in a transaction in connection with which the Company or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Code Section 414 Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) Neither the Company nor any ERISA Affiliate of the Company sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has had any liability or obligation under or with respect to, and no Parent Company Benefit Plan is, a plan that is or was (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code, (ii) a “welfare benefit fund” (as such term is defined within Section 419 of the Code), (iii) a “multiple employer plan as described in plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code, or (iv) a “multiple employer welfare arrangement arrangement” (as such term is defined in Section 3(40) of ERISA), and neither the Company nor any ERISA Affiliate of the Company has ever incurred any liability under Title IV of ERISA that has not been paid in full.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law (or for a limited period of time following a termination of employment pursuant to the terms of an existing employment, severance or similar agreement in effect as of the date hereof), no Company Benefit Plan provides retiree or post-employment or post-service medical, disability life insurance or other welfare benefits to any Person.
(i) None of the execution and delivery of this Agreement, the Parent Shareholder Approval or the consummation of the Transactions will, alone or in combination with any other event, (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee of the Company or any Subsidiary thereof (a “Company Employee”) or to any current or former director, officer or other individual service provider of the Company or any Subsidiary of the Company, (ii) further restrict any rights of the Company to amend or terminate any Company Benefit Plan, (iii) result in the forgiveness of any Indebtedness of any Company Employee or officer, director or other individual service provider of the Company or any Subsidiary of the Company or (iv) result in any “parachute payment” as defined in Section 280G(b)(2) of the Code (whether or not such payment is considered to be reasonable compensation for services rendered) to any Company Employee or officer, director or other service provider of the Company or any Subsidiary of the Company
(j) Neither the Company nor any Subsidiary of the Company has any obligation to provide, and no Company Benefit Plan or other agreement provides, any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Company Benefit Plan or any other agreement, arrangement, or plan of the Company or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) Each Company Non-U.S. Benefit Plan and related trust, if any, (i) complies with and has been administered in all material respects in accordance with (A) the applicable Laws of the subject foreign country and (B) its terms and the terms of any Labor Agreement and (ii) each Company Non-U.S. Benefit Plan which, under the applicable Laws of the subject foreign country, is required to be registered or approved by any Governmental Entity has been so registered or approved.
Appears in 2 contracts
Sources: Merger Agreement (Ritchie Bros Auctioneers Inc), Merger Agreement (IAA, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) 4.10 of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans (or, with respect to any unwritten Company Plan, a written summary thereof) and the most current version of any related trust agreementsdocuments, insurance contracts and any amendments thereto and favorable determination or other funding arrangementsopinion letters, summary plan descriptionsif applicable, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and accompanying schedules, financial statements and actuarial reports and current summary plan description and summary of material modifications with respect to each Company Plan required to file a Form 5500 and all correspondence received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity during the past three years.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply has not had and would not be reasonably be expected likely to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would are not reasonably be expected material to havethe Company or any of its Subsidiaries. There is no audit, individually inquiry or in examination pending or, to the aggregateknowledge of the Company, a Parent Material Adverse Effectthreatened by the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity with respect to any Company Plan.
(d) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Parent or Neither the Company nor any of its Subsidiaries or Subsidiaries, nor any entity member of an Aggregated Group to which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 such Person belongs, contributes to or to, has an obligation to contribute to, or has any liability with respect to (including contingent liability) and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), (iii) a multiple employer plan as described in Section 413(c) 302 of ERISA, or Section 412 of the Code, Code or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)as defined in Section 3(40)(A) or ERISA).
(j) No Company Plan and neither the Company nor any of its Subsidiaries provides, or has any obligation to provide, current or former employees of the Company or any of its Subsidiaries (or any beneficiaries thereof) welfare benefits (including medical and life insurance benefits) after such Person terminates employment with the Company and its Subsidiaries, except for the coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Section 4980B of the Code and Section 601 et. seq. of ERISA. No Company Plan and neither the Company nor any of its Subsidiaries provides, or has any obligation to provide welfare benefits to any Person who is not a current or former employee of the Company or any of its Subsidiaries, or a beneficiary thereof.
Appears in 2 contracts
Sources: Merger Agreement (Range Resources Corp), Merger Agreement (Memorial Resource Development Corp.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Parent Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such Parent Benefit Plan is not written) of each of the material Parent Benefit Plans (including any amendments thereto) and the most current version of any related trust agreementsdocuments, insurance contracts or other funding arrangementsand favorable determination letters, summary plan descriptionsif applicable, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives.
(b) Each Parent Plan has been administered, funded (if applicable) along with the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectBenefit Plan.
(c) As of Each Parent Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA, the date of this Agreement, there Code and the Tax Act.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPParent Benefit Plans.
(e) None All contributions required to be made by Parent or any of its Subsidiaries to the Parent Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Parent Benefit Plan. With respect to any Parent Benefit Plan, none of Parent or any of its Subsidiaries or Subsidiaries, or, to the knowledge of Parent, any entity other Person, has engaged in a transaction in connection with which would be deemed to be a single employer with Parent or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Parent and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent, any of its Subsidiaries under Code Section 414 or any member of their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) None of Parent or any of its Subsidiaries sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, a plan that is a “registered pension plan”, a “registered retirement savings plan”, a “deferred profit sharing plan”, a “retirement compensation arrangement”, an “employee life and health trust”, an “employee trust”, an “employee profit sharing plan”, as each of those is defined in the Tax Act, or a “health and welfare trust” within the meaning of Canada Revenue Agency Income Tax Folio S2-F1-C1.
(i) None of the Parent Benefit Plans is intended to be or has ever been found or alleged by a Governmental Entity to be a “salary deferral arrangement” within the meaning of subsection 248(1) of the Tax Act.
(j) All of the Parent Benefit Plans are self-contained to either Parent or one of its Subsidiaries.
(k) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage or otherwise mandated by applicable Law, no Parent Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(l) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of (or create a new entitlement to), compensation due to any employee of Parent (an “Parent Employee”) or any Subsidiary thereof or other current or former director, officer, employee or independent contractor under any Parent Benefit Plan, (ii) directly or indirectly cause Parent or any Subsidiary thereof to transfer or set aside any material amount of assets to fund any material benefits under any Parent Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Parent Benefit Plan on or following the CodeCompany Merger Effective Time, or (iv) result in any payment from Parent or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Parent or any of its Subsidiaries that would, individually or in combination with any other such payment from Parent or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(m) Neither Parent nor any Subsidiary of Parent has any obligation to provide, and no Parent Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(n) Each Parent Benefit Plan or any other agreement, arrangement, or plan of Parent or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(o) No Parent Benefit Plan is maintained outside the jurisdictions of the United States and Canada or covers any Parent Employees who reside or work outside of the United States or Canada.
Appears in 2 contracts
Sources: Merger Agreement (Ranger Oil Corp), Merger Agreement (Ranger Oil Corp)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) 4.10 of the Parent Company Disclosure Letter is sets forth a list, as list of the date hereof, of all of the each material Employee Benefit Plans Plan sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent material Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, including (i) all governing plan documents (including amendments), (ii) all trust agreement or other funding arrangements (including insurance contracts), (iii) the most recent IRS determination or opinion letter, (iv) the most recent summary plan descriptions, (v) annual reports or returns, audited or unaudited financial statements, and actuarial valuations for the most recent three (3) plan years, and (vi) non-discrimination testing data and reports for the two most recently completed plan years.
(b) Each Parent Company Plan has been administeredestablished, funded (if applicable) funded, and maintained administered in compliance in all material respects with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there . There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans. All Company Plans that are intended to be subject to the tax qualification requirements of Code Section 401(a) are so qualified and have received a favorable determination letter from the IRS or is maintained pursuant to a pre-approved plan where the Company is entitled to rely on a favorable opinion letter from the IRS. All contributions to, except for such pending actionsand payments from, suits each Company Plan have been timely made.
(c) Neither the Company nor its ERISA Affiliates have at any time sponsored, contributed to, or claims that would not reasonably be expected been obligated under Title I or Title IV of ERISA to have, individually contribute to a "defined benefit plan" (as defined in ERISA Section 3(35)). Neither the Company nor its ERISA Affiliates have ever had an "obligation to contribute" (as defined in ERISA Section 4212) to a "multiemployer plan" (as defined in ERISA Section 4001(a)(3) and 3(37)(A)). No Company Plan is a "multiple employer plan" (meaning a plan sponsored by two or more unrelated employers) or a "multiple employer welfare arrangement" (as defined in ERISA Section 3(40). The Company has no liability under Title IV of ERISA or Code Section 412 either directly or through its ERISA Affiliates. Neither the Company nor its ERISA Affiliates have maintained in the aggregatepast nor currently maintain an Employee Benefit Plan providing welfare benefits (as defined in ERISA Section 3(1)) to employees after retirement or other separation of service except to the extent required under Part 6 of Title I of ERISA or Code Section 4980B or their successors or other applicable Law. The Company has complied in all material respects with the continuation coverage requirements of Section 1001 of COBRA, a Parent Material Adverse Effectand ERISA Sections 601 through 608.
(d) There are no material unfunded benefit obligations that have not been properly accrued Except as otherwise provided for in Parent’s financial statements this Agreement or disclosed as set forth in Schedule 4.10(d) of the notes thereto Company Disclosure Letter, neither the execution of this Agreement, shareholder approval of this Agreement, or consummation of the transactions contemplated by this Agreement (individually or in accordance conjunction with GAAP.
any other event) will (ei) None of Parent entitle any current or former service provider to the Company or any of its Subsidiaries to retention or other bonuses, parachute payments, non-competition payments, or any entity which would be deemed other payment, (ii) entitle any current or former service provider to be a single employer with Parent the Company or any of its Subsidiaries under Code Section 414 contributes to unemployment compensation, severance pay, or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV any increase in severance pay upon any termination of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISAemployment, (iii) result in any breach or violation of, or a multiple employer plan as described default under, any of the Company Plans, (iv) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation of benefits under or increase the amount of compensation due to any individual service provider to the Company or any of its Subsidiaries, (v) give rise to any payment or benefit that would not be deductible in whole or in part by reason of Section 413(c) 280G of the Code, or (ivvi) limit or restrict the right of the Company or any of its Subsidiaries or, after the consummation of the transactions contemplated hereby, the Company, to merge, amend, or terminate any of the Company Plans.
(e) Each Company Plan that is a multiple employer welfare non-qualified deferred compensation plan or arrangement (within the meaning of ERISA 3(40))Section 409A of the Code, and any underlying award, is in compliance in all material respects with Section 409A of the Code, and no payment or award that has been made to any participant under a Company Plan is subject to the interest and penalties specified in Section 409A(a)(1)(B) of the Code. Neither the Company nor any of its Subsidiaries (x) has an obligation to reimburse or indemnify any participant in a Company Plan for any of the interest or penalties specified in Section 409A(a)(1)(B) of the Code that may be currently due or triggered in the future, and (y) has been required to report to any Governmental Entity any correction or taxes due as a result of a failure to comply with Section 409A of the Code.
(f) No Company Plan provides for the gross-up or reimbursement of any Taxes imposed by Section 4999 of the Code or otherwise, and neither the Company, nor any of its Subsidiaries has any obligation to reimburse or indemnify any party for such Taxes.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a2.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsored(including, maintainedfor certainty, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries all Company Employment Agreements).
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such plan is not written) of each of the Parent material Company Benefit Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with a summary plan description or employee booklet with respect to each Company Benefit Plan, and all material correspondence to or from any Governmental Entity received or sent in the past three (3) years addressing any matter involving actual or potential material liability relating to a Company Benefit Plan. Further, prior to the Effective Time, Company shall use reasonable best efforts to provide or make available to Parent or its Representatives, copies of any trust documents, insurance contracts, funding agreements and favorable determination letters, if applicable and material, in each case related to the material Company Benefit Plans, along with the most recent report filed with a Governmental Entity, including a Form 5500 or Annual Information Return, and the most recently prepared actuarial reports.
(bc) Each Parent Company Benefit Plan has been established, registered (where required), funded, administered, funded (if applicable) invested and maintained in compliance in all material respects with its terms and all applicable Laws, including, to the extent applicable, ERISA and the Code, and in accordance with its terms, except where the failure to do so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of Except as would not reasonably be expected to have, individually or in the date of this Agreementaggregate, a Company Material Adverse Effect: (i) there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of ParentCompany, threatened against, or with respect to, any of the Parent Company Benefit Plans, and there are no Proceedings initiated or reasonably expected to be initiated by a Governmental Entity, or any other party, with respect to any of the Company Benefit Plans and (ii) as of the date of this Agreement, neither Company nor any of its Subsidiaries has any liability (nor reasonably expects to incur any material liability) for any assessment, excise or penalty taxes with respect to any Company Benefit Plan.
(e) All contributions or premiums required to be made by Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP, except for such pending actions, suits or claims that as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(df) There are no Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan, none of Company or any of its Subsidiaries, or, to the knowledge of Company, any other Person, has engaged in a transaction in connection with which Company or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Company and its Subsidiaries do not have any material unfunded benefit obligations that have liability (whether or not been properly accrued for in Parent’s financial statements assessed) under Sections 4980B, 4980D, 4980H, 6721 or disclosed in 6722 of the notes thereto in accordance with GAAPCode.
(eg) None of Parent or Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, : (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code; (ii) a “registered pension plan” or “multi-employer pension plan” that contains a “defined benefit provision” within, in each case, the meaning of the Tax Act; or (iii) a multiple multi-employer pension plan as described such term is defined under the Pension Benefits Standards Act (Canada) or any similar plan for purposes of pension standards legislation of another Canadian jurisdiction.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any other applicable Law for which the recipient pays the full premium cost of coverage and other than as set forth in Schedule 2.10(h) of the Company Disclosure Letter, no Company Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person and neither Company nor any of its Subsidiaries has any liability to provide post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person or ever represented, promised or contracted to any Person that such Person would be provided with such benefits.
(i) Except as disclosed in Schedule 2.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (A) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee or other current or former director, officer, employee or independent contractor of Company or any Subsidiary under any Company Benefit Plan, (B) directly or indirectly cause Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Benefit Plan, (C) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the Effective Date, or (D) result in any payment from Company or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Company or any of its Subsidiaries that would, individually or in combination with any other such payment from Company or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 413(c280G(b)(1) of the Code).
(j) Neither Company nor any Subsidiary of Company has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Company Benefit Plan or any other agreement, arrangement, or (iv) plan of Company or any of its Subsidiaries that constitutes in any part a multiple employer welfare arrangement (nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as list of the date hereof, of all of the each material Employee Company Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plan.
(the “Parent Plans”). b) True, correct and complete copies of each material Company Benefit Plan (or, in the case of any material Company Benefit Plan not in writing, a description of the Parent Plans material terms thereof) and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with, as applicable, with respect to each material Company Benefit Plan, the most recent report filed on Form 5500, summary plan description, and all material correspondence to or from (including non-routine filings made with) any Governmental Entity in the past three (3) years.
(bc) Each Parent Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, each Company Benefit Plan has been maintained, funded and operated in compliance with its terms and all applicable Laws, including ERISA and the Code.
(cd) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect, there are no actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened against, or with respect to, any of the Company Benefit Plans (or the assets thereof), and there are no Proceedings by a Governmental Entity pending with respect to any of the Company Benefit Plans (or the assets thereof).
(de) There are no material unfunded benefit obligations that have Except as would not been properly accrued for in Parent’s financial statements reasonably be expected to have, individually or disclosed in the notes thereto aggregate, a Company Material Adverse Effect, all contributions or other payments required to be made by the Company or any of its Subsidiaries with respect to each of the Company Benefit Plans pursuant to their terms or applicable Laws have been timely made or, if not yet due, accrued in accordance with GAAP.
(ef) None Each Company Benefit Plan that is intended to be qualified under Section 401(a) of Parent the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that could reasonably be expected to adversely affect the qualification of any such Company Benefit Plan. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other Person, has engaged in a transaction with respect to any Company Benefit Plan in connection with which the Company or any of its Subsidiaries or any entity which would Company Benefit Plan could, in each case, reasonably be deemed expected to be subject to either a single employer with Parent civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code.
(g) Except as set forth on Schedule 4.10(g) of the Company Disclosure Letter, none of the Company, any of its Subsidiaries under Code Section 414 or any of their respective ERISA Affiliates maintains, sponsors, contributes to or has an obligation to contribute to, or otherwise has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, (i) a plan subject to Title IV of ERISA and/or Section ERISA, Sections 302 or 303 of ERISA, or Sections 412 or 430 of the Code, a “multiemployer plan” (iias defined in Section 3(37) of ERISA), a multiemployer plan “multiple employer plan” (within the meaning of Section 3(37) 210 of ERISA, (iii) a multiple employer plan as described in ERISA or Section 413(c) of the Code), or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(h) Except as set forth on Schedule 4.10(h) of the Company Disclosure Letter or as required by applicable Law, no Company Benefit Plan provides retiree or post-employment medical or life insurance benefits to any Person, and neither the Company nor any of its Subsidiaries has any obligation to provide such benefits. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has incurred (whether or not assessed) or could reasonably be expected to incur any Tax or penalty under Section 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(i) Except as set forth on Schedule 4.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any employees of the Company or any of its Subsidiaries to any amount of compensation or benefits (including any severance pay or any material increase in severance pay or any loan forgiveness), (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee of the Company or any of its Subsidiaries, (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) a multiple employer welfare arrangement otherwise give rise to any liability under any Company Benefit Plan or (v) limit or restrict the right to amend, terminate or transfer the assets of any Company Benefit Plan on or following the Effective Time.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, result in any “excess parachute payment” within the meaning of ERISA 3(40))Section 280G of the Code.
(k) Neither the Company nor any of its Subsidiaries has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(l) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any employees of the Company or any of its Subsidiaries who reside or work outside of the United States.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, complete list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services Company Plans.
(b) The Company has heretofore made available to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct true and complete copies of (i) each material Company Plan (or, in the case of any Company Plan not in writing, a description of the Parent Plans material terms thereof), including any amendments thereto and the most current version of any all related trust agreementsdocuments, insurance contracts or other funding arrangementsvehicles, summary plan descriptionsand (ii) to the extent applicable, (A) the most recent Form 5500 filing and summary plan description required under ERISA with respect to such Company Plan, (B) the two most recent annual reports (Forms 5500), (C) the most current version of recently received determination, opinion or advisory letter from the Internal Revenue Service relating to such Company Plan, (D) the most recently prepared actuarial report for each Company Plan and (E) all material non-routine correspondence to or from any applicable IRS determination letters have been furnished or made available to Governmental Entity received in the Company or its Representativeslast two (2) years.
(bc) Each Parent Company Plan has been administeredestablished, funded (if applicable) operated and maintained administered in compliance accordance with its terms and the requirements of all applicable Lawslaws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of the date of this Agreement, there There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened againstclaims (other than claims for benefits in the ordinary course), lawsuits or arbitrations that have been asserted or instituted, and, to the knowledge of the Company, no set of circumstances exists that may reasonably be expected to give rise to a claim or lawsuit, against the Company Plans, any fiduciaries thereof with respect to, to their duties to the Company Plans or the assets of any of the Parent trusts under any of the Company Plans, except for such pending actions, suits or threatened claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(e) None of Parent or any of its Subsidiaries or any entity which would be deemed All contributions required to be a single employer with Parent made to any Company Plan by applicable law or by any of its Subsidiaries under Code Section 414 contributes plan document, or as required by law, including all contributions required to or has an obligation to contribute to, and no Parent satisfy the funding standards for any Company Plan is, (i) a plan subject to Title IV of ERISA and/or ERISA, Section 302 of ERISA, or Section 412 of the Code, and all premiums due or payable with respect to insurance policies funding any Company Plan, including premiums to the Pension Benefit Guaranty Corporation, for any period through the date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of the Company, except where the failure to make such contributions or pay premiums that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(f) The Internal Revenue Service has issued a favorable determination, opinion or advisory letter with respect to each Company Plan that is intended to be qualified under Section 401(a) of the Code (the “Company Qualified Plans”) and the related trust, and, to the knowledge of the Company, there are no existing circumstances and no events have occurred that would reasonably be expected to adversely affect the qualified status of any Company Qualified Plan or the related trust. With respect to any ERISA Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(g) During the immediately preceding six (6) years, no Controlled Group Liability has been incurred by the Company or any ERISA Affiliate of the Company that has not been satisfied in full, and, to the knowledge of the Company, no condition exists that presents a material risk to the Company or any ERISA Affiliate of incurring any such liability, except for any such liability that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, “Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii) a multiemployer plan within the meaning of under Section 3(37) 302 of ERISA, (iii) a multiple employer plan as described in Section 413(c) under Sections 412 and 4971 of the Code, or (iv) as a multiple employer welfare arrangement (within result of a failure to comply with the meaning continuing coverage requirements of Section 601 et. seq. of ERISA 3(40and Section 4980B of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that is, or was at the relevant time, 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 or included the first entity, trade or business, or that is, or was at the relevant time, a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) 4.10 of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent "Company Plans”"). True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters arrangements have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent To the Company's knowledge, each Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s the Company's financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event), (i) result in any material payment from the Company or any of its Subsidiaries becoming due, or materially increase in the amount of any compensation due, to any of their respective employees or consultants, (ii) materially increase any benefits otherwise payable under any Company Plan, (iii) a multiple employer plan as described result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of any compensation or benefits payable to or in respect of any employee, director or consultant or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan. The Company has provided to Parent such information as is necessary for Parent to determine the treatment under Section 280G of the Code of the compensation and benefits to be provided as a multiple employer welfare arrangement result of the execution of this Agreement and the consummation of the transactions contemplated by this Agreement (within the meaning of ERISA 3(40))either alone or together with any other event) under any Company Plan or other compensation arrangement.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) Section 4.10 of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Company Plans sponsored, maintained, or contributed to by Parent of the Company or any of its Subsidiaries or with respect to which Parent or Subsidiaries, except that such list need not include any of its Subsidiaries could reasonably be expected to have any liability or Company Plan that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”)is immaterial. True, correct and complete copies of each of the Parent material Company Plans and the most current version of any related trust agreementsdocuments and favorable determination or opinion letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its RepresentativesRepresentatives upon the request of Parent, along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Plan required to file a Form 5500.
(b) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect. Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received or has reliance upon a favorable determination or opinion letter from the Internal Revenue Service and, to the knowledge of the Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or any such plan being disqualified.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations with respect to any Company Plan that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Parent or the Company nor any member of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 Aggregated Group contributes to or has in the past six (6) years contributed to, or has or has in the past six (6) years had an obligation to contribute to, or otherwise has any material liability (actual or contingent) with respect to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except for continuation coverage to be provided, and for no longer than the continuation coverage is required to be provided, pursuant to Section 4980B of the Code or any similar state Law, neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Company Plan provides or promises, any postemployment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer, or employee (including any former director, officer, or employee) of the Company or any of its Subsidiaries.
(h) Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former service provider of the Company or any of its Subsidiaries for any Tax incurred by such service provider under Section 409A or 4999 of the Code or otherwise.
(i) Except as provided under this Agreement or as set forth in Section 4.10(i) of the Company Disclosure Letter, with respect to each director, officer, or employee (including each former director, officer, or employee) of the Company or any of its Subsidiaries, the consummation of the Transactions will not, either alone or together with any other event, (i) entitle any such individual to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Plan, or (iii) a multiple employer plan result in the payment of any “excess parachute payment” (as described defined in Section 413(c280G(b)(1) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) 5.10 of the Parent Disclosure Letter is sets forth a list, as list of the date hereof, of all of the each material Employee Benefit Plans Plan sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the material Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives, including (i) all governing plan documents (including amendments), (ii) all trust agreement or other funding arrangements (including insurance contracts), (iii) the most recent IRS determination or opinion letter, (iv) the most recent summary plan descriptions, (v) annual reports or returns, audited or unaudited financial statements, and actuarial valuations for the most recent three (3) plan years, and (vi) non-discrimination testing data and reports for the two most recently completed plan years.
(b) Each Parent Plan has been administeredestablished, funded (if applicable) funded, and maintained administered in compliance in all material respects with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there . There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans. All Parent Plans that are intended to be subject to the tax qualification requirements of Code Section 401(a) are so qualified and have received a favorable determination letter from the IRS or is maintained pursuant to a pre-approved plan where Parent is entitled to rely on a favorable opinion letter from the IRS. All contributions to, except for such pending actionsand payments from, suits each Parent Plan have been timely made.
(c) Neither Parent nor its ERISA Affiliates have at any time sponsored, contributed to, or claims that would not reasonably be expected been obligated under Title I or Title IV of ERISA to have, individually contribute to a "defined benefit plan" (as defined in ERISA Section 3(35)). Neither Parent nor its ERISA Affiliates have ever had an "obligation to contribute" (as defined in ERISA Section 4212) to a "multiemployer plan" (as defined in ERISA Section 4001(a)(3) and 3(37)(A)). No Parent Plan is a "multiple employer plan" (meaning a plan sponsored by two or more unrelated employers) or a "multiple employer welfare arrangement" (as defined in ERISA Section 3(40). Parent has no liability under Title IV of ERISA or Code Section 412 either directly or through its ERISA Affiliates. Neither Parent nor its ERISA Affiliates have maintained in the aggregatepast nor currently maintain an Employee Benefit Plan providing welfare benefits (as defined in ERISA Section 3(1)) to employees after retirement or other separation of service except to the extent required under Part 6 of Title I of ERISA or Code Section 4980B or their successors or other applicable Law. Parent has complied in all material respects with the continuation coverage requirements of Section 1001 of COBRA, a Parent Material Adverse Effectand ERISA Sections 601 through 608.
(d) There are no material unfunded benefit obligations that have not been properly accrued Except as otherwise provided for in Parent’s financial statements this Agreement or disclosed as set forth in Schedule 5.10(d) of the notes thereto Parent Disclosure Letter, neither the execution of this Agreement, shareholder approval of this Agreement, or consummation of the transactions contemplated by this Agreement (individually or in accordance conjunction with GAAP.
any other event) will (ei) None entitle any current or former service provider to Parent or any of its Subsidiaries to retention or other bonuses, parachute payments, non-competition payments, or any other payment, (ii) entitle any current or former service provider to Parent or any of its Subsidiaries to unemployment compensation, severance pay, or any increase in severance pay upon any termination of employment, (iii) result in any breach or violation of, or a default under, any of the Parent Plans, (iv) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation of benefits under or increase the amount of compensation due to any individual service provider to Parent or any of its Subsidiaries, (v) give rise to any payment or benefit that would not be deductible in whole or in part by reason of Section 280G of the Code, or (vi) limit or restrict the right of Parent or any of its Subsidiaries or any entity which would be deemed to be a single employer with or, after the consummation of the transactions contemplated hereby, the Parent or the Surviving Company, to merge, amend, or terminate any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no the Parent Plans.
(e) Each Parent Plan is, (i) that is a non-qualified deferred compensation plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan or arrangement within the meaning of Section 3(37) 409A of ERISAthe Code, (iii) and any underlying award, is in compliance in all material respects with Section 409A of the Code, and no payment or award that has been made to any participant under a multiple employer plan as described Parent Plan is subject to the interest and penalties specified in Section 413(c409A(a)(1)(B) of the Code. Neither Parent nor any of its Subsidiaries (x) has an obligation to reimburse or indemnify any participant in a Parent Plan for any of the interest or penalties specified in Section 409A(a)(1)(B) of the Code that may be currently due or triggered in the future, and (y) has been required to report to any Governmental Entity any correction or taxes due as a result of a failure to comply with Section 409A of the Code.
(ivf) a multiple employer welfare arrangement (within No Parent Plan provides for the meaning gross-up or reimbursement of ERISA 3(40))any Taxes imposed by Section 4999 of the Code or otherwise, and neither Parent, nor any of its Subsidiaries has any obligation to reimburse or indemnify any party for such Taxes.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent material Company Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Plan required to file a Form 5500, and all material correspondence to or from any Governmental Entity received in the last two years.
(bc) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, and there are no Proceedings by a Governmental Entity with respect to any of the Company Plans, except for such pending actions, suits suits, claims or claims Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(de) All material contributions required to be made by the Company to the Company Plans pursuant to their terms have been timely made.
(f) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements statements, and all contributions or disclosed other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAP.
(eg) None Each ERISA Plan that is intended to be qualified under Section 401(a) of Parent the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and, to the knowledge of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan that could give rise to any material liability. With respect to any ERISA Plan, neither the Company nor any of its Subsidiaries has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material.
(h) None of the Company or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 Aggregated Group contributes to or has an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(i) Except as required by applicable Law, no Company Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(j) Except as set forth on Schedule 4.10(j) of the Company Disclosure Letter or pursuant to the terms of Schedule 6.9(a) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions could, either alone or in combination with another event, (i) entitle any Company Employee to severance pay or any material increase in severance pay, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any such Company Employee, (iii) directly or indirectly cause the Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Plan, (iv) otherwise give rise to any material liability under any Company Plan or (v) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Plan on or following the Effective Time.
(k) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a multiple employer plan as described in gross up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 413(c) 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code, .
(l) No Company Plan is maintained outside the jurisdiction of the United States or (iv) a multiple employer welfare arrangement (within covers any Company Employees who reside or work outside of the meaning of ERISA 3(40))United States.
Appears in 1 contract
Sources: Merger Agreement (RSP Permian, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of the following with respect to each of the Parent Plans and Company Plans, to the most current version of any related trust agreementsextent applicable, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives: (i) the most recent copies of all documents constituting or embodying such Company Plan, (ii) the most recent Internal Revenue Service determination or opinion letter, (iii) the most recent summary plan description, all summaries of material modifications, and the three most recent annual reports and summary annual reports (and any other material summaries or employee communications), (iv) all current trust agreements and insurance contracts relating to the funding or payment of benefits under such Company Plan, (v) for the three most recently completed plan years (A) Form 5500 and attached schedules and (B) financial statements, and (vi) all material correspondence with any governmental authority since December 10, 2018.
(b) Each Parent Company Plan and any related trust has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectall material respects.
(c) Each Company Plan that is intended to be qualified under Section 401(a) of the Code, and each trust that is related to a Company Plan and intended to be tax-exempt under Section 501(a) of the Code, has received a favorable determination or opinion letter from the IRS regarding its tax-qualified status and tax-exemption, respectively, and to the Company’s Knowledge, nothing has occurred that would adversely affect any such qualification or tax exemption of any such Company Plan or related trust.
(d) Except as required by applicable Law, no material Company Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and the Company has no obligation to provide such benefits except for any payment or reimbursement of COBRA premiums as part of a severance benefit or other coverage required by COBRA or applicable Law.
(e) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or result in material liability to the aggregate, a Parent Material Adverse EffectCompany.
(df) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(g) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eh) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code, (iiiii) a “multiple employer plan as described in plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the CodeCode or (iii) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(i) Except as set forth in Schedule 4.10(i) of the Company Disclosure Letter, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their respective officers, employees or consultants, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of any compensation or benefits payable to or in respect of any current or former employee, director or consultant or (iv) a multiple employer welfare arrangement limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan. Schedule 4.10(i) of the Company Disclosure Letter separately identifies, by individual, the Company’s estimate, as of the date hereof, of the value of the benefits required to be scheduled on Schedule 4.10(i) of the Company Disclosure Letter and the value of any severance payments that may become due and payable following the execution and delivery of this Agreement.
(within j) Except as set forth in Schedule 4.10(j) of the meaning Company Disclosure Letter, none of ERISA 3(40))the execution and delivery hereof, stockholder or other approval hereof or the consummation of the Transactions could, either alone or in combination with another event, result in the payment by the Company or any of its Subsidiaries of any amount that could, individually or in combination with any other such payment, be an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. The Company has no obligation to gross-up, indemnify or otherwise reimburse any current or former employee, director or other individual service provider of the Company or any of its Subsidiaries for any Tax incurred by such individual under Sections 409A or 4999 of the Code.
Appears in 1 contract
Sources: Merger Agreement (Benefit Street Partners Realty Trust, Inc.)
Compensation Benefits. (a) Set forth on Schedule 5.10(ain Section 4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has, or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have have, any liability (such Employee Benefit Plans, other than the Company Manager Plans and whether or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (not material, the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans (or, in the case of any unwritten Company Plan, a written description thereof) and the most current version of any amendments thereto and, as applicable, any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Company Plan, in each case, have been furnished or made available to the Company Parent or its Representatives.
(b) Set forth in Section 4.10(b) of the Company Disclosure Letter is a list, as of the date hereof, of all of the Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Company Manager, Aspen ML LLC, an Oregon limited liability company (“Aspen”), or ▇▇▇▇▇▇▇ Funding LLC, a Delaware limited liability company, the Company’s servicer (“▇▇▇▇▇▇▇”), or with respect to which Company Manager, Aspen, or ▇▇▇▇▇▇▇ has, or could reasonably be expected to have, any liability (such Employee Benefit Plans, whether or not material, the “Company Manager Plans”). True, correct and complete copies of each of the Company Manager Plans (or, in the case of any unwritten Company Manager Plan, a written description thereof) have been furnished or made available to Parent or its Representatives.
(c) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws.
(d) Each Company Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code has received a favorable determination letter, except where or may rely on a favorable opinion letter, issued by the failure IRS, and to so comply the knowledge of the Company, no events have occurred that would not reasonably be expected to have, individually result in any such letter being revoked or in the aggregate, a Parent Material Adverse Effectloss of the qualified status of any such Company Plan.
(ce) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(df) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(g) There are no material unfunded benefit obligations with respect to any Company Plan that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eh) None of Parent the Company, any of its Subsidiaries, or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 their respective ERISA Affiliates, contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Company Plan or Company Manager Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 of the Code.
(i) Except for continuation coverage to be provided, and for no longer than continuation coverage is required to be provided, pursuant to Section 4980B of the Code or any similar state Law for which any director, officer or employee (including any former director, officer or employee) is responsible for the full cost of such coverage, neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Company Plan or Company Manager Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer or employee (including any former director, officer or employee) of the Company, Company Manager or any of their respective Affiliates.
(j) Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former service provider of the Company, Company Manager or any of their respective Affiliates for any Tax incurred by such service provider under Sections 409A or 4999 of the Code.
(k) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any current or former officers, employees or consultants of the Company, Company Manager or any of their respective Affiliates, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a multiple employer plan trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any current or former employee, director or consultant of the Company, Company Manager or any of their respective Affiliates or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan.
(l) Except as described set forth in Section 413(c4.10(l) of the Company Disclosure Letter, no payment or benefit (or portion thereof) that is required to be made by the Company or any of its Subsidiaries under any Company Plan or this Agreement, or would be required to be made by the Surviving Company or Parent under any Company Plan or this Agreement as a result of the Transactions, with respect to any “disqualified individual” (as defined within Treas. Reg. 1.280G-1, Q&A 15), individually or in the aggregate, could be an “excess parachute payment” within the meaning of Section 280G(b) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Group Plans”). True, correct and complete copies of each of the Parent Company Group Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsto the extent applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representativesrepresentatives, along with, to the extent applicable, the most recent report filed on Form 5500 and summary plan description with respect to each Company Group Plan required to file a Form 5500.
(b) Schedule 4.10(b) lists all Company Group Plans that are maintained, sponsored, contributed to or required to be contributed to the Company or any of its Subsidiaries for which the Company or any of its Subsidiaries or Rice or any of its Affiliates could have any liability after the Closing.
(c) Each Parent Company Group Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply has not had and would not be reasonably be expected likely to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of the date of this Agreement, there are no material actions, suits suits, claims or claims administrative proceedings pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Group Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(de) There are no material unfunded benefit obligations with respect to the Company Group Plans that have not been properly accrued for in ParentCompany’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None Each Company Group Plan which is intended to be qualified within the meaning of Parent Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualification, and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification. Except as would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (i) no event has occurred and no condition exists that would subject the Company or any of its Subsidiaries to any Tax, fine, lien, penalty or other liability imposed by ERISA or the Code and (ii) no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code or Section 502 of ERISA) has occurred with respect to any entity which would be deemed to be a single employer with Parent or Company Group Plan.
(g) Neither the Company nor any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Company Group Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), (iii) a multiple employer plan as described in Section 413(c) 302 of ERISA, or Section 412 of the Code.
(h) Neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of (and no Company Group Plan provides for any) post-employment or post-retirement health, medical or (iv) a multiple employer welfare arrangement (within life insurance coverage for current, former or retired employees, except as required to avoid an excise tax under Section 4980B of the meaning of ERISA 3(40))Code.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Parent Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such Parent Benefit Plan is not written) of each of the material Parent Benefit Plans (including any amendments thereto) and the most current version of any related trust agreementsdocuments, insurance contracts or other funding arrangementsand favorable determination letters, summary plan descriptionsif applicable, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company or its Representatives.
(b) Each Parent Plan has been administered, funded (if applicable) along with the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectBenefit Plan.
(c) As of Each Parent Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA, the date of this Agreement, there Code and the Tax Act.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPParent Benefit Plans.
(e) None All contributions required to be made by Parent or any of its Subsidiaries to the Parent Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Parent Benefit Plan. With respect to any Parent Benefit Plan, none of Parent or any of its Subsidiaries or Subsidiaries, or, to the knowledge of Parent, any entity other Person, has engaged in a transaction in connection with which would be deemed to be a single employer with Parent or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Parent and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent, any of its Subsidiaries under Code Section 414 or any member of their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) None of Parent or any of its Subsidiaries sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Benefit Plan is, a plan that is a “registered pension plan”, a “registered retirement savings plan”, a “deferred profit sharing plan”, a “retirement compensation arrangement”, an “employee life and health trust”, an “employee trust”, an “employee profit sharing plan”, as each of those is defined in the Tax Act, or a “health and welfare trust” within the meaning of Canada Revenue Agency Income Tax Folio S2-F1-C1.
(i) None of the Parent Benefit Plans is intended to be or has ever been found or alleged by a Governmental Entity to be a “salary deferral arrangement” within the meaning of subsection 248(1) of the Tax Act.
(j) All of the Parent Benefit Plans are self-contained to either Parent or one of its Subsidiaries.
(k) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage or otherwise mandated by applicable Law, no Parent Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(l) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of (or create a new entitlement to), compensation due to any employee of Parent (an “Parent Employee”) or any Subsidiary thereof or other current or former director, officer, employee or independent contractor under any Parent Benefit Plan, (ii) directly or indirectly cause Parent or any Subsidiary thereof to transfer or set aside any material amount of assets to fund any material benefits under any Parent Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Parent Benefit Plan on or following the CodeCompany Merger Effective Time, or (iv) result in any payment from Parent or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Parent or any of its Subsidiaries that would, individually or in combination with any other such payment from Parent or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(m) Neither Parent nor any Subsidiary of Parent has any obligation to provide, and no Parent Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(n) Each Parent Benefit Plan or any other agreement, arrangement, or plan of Parent or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(aSection 4.11(a) of the Parent Company Disclosure Letter is Schedules sets forth a list, as list of the date hereof, of all of the material each Employee Benefit Plans Plan sponsored, maintained, contributed to, or required to be contributed to by Parent the Company or any of its Subsidiaries Subsidiaries, or any ERISA Affiliate, or with respect to which Parent or any of its Subsidiaries such entities could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”).
(b) True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives.
, including (bi) Each Parent Plan has been administeredall governing plan documents (including amendments), funded (if applicableii) all trust agreements or other funding arrangements (including insurance Contracts), (iii) the most recent IRS determination or opinion letter, (iv) the most recent summary plan descriptions, (v) annual reports or returns, audited or unaudited financial statements, and maintained in compliance with its terms actuarial valuations for the most recent three (3) years, (vi) non-discrimination testing data and all applicable Laws, except where reports for the failure most recent three (3) plan years and (vii) each third-party services agreement related to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectany Company Plan.
(c) As of the date of this AgreementEach Company Plan has been established, there funded and administered in compliance in all material respects with its terms and applicable Laws. There are no actionsActions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There All Company Plans that are no material unfunded benefit obligations that intended to be subject to Code Section 401(a) are so qualified and have not received a favorable determination letter from the Internal Revenue Service or is maintained pursuant to a pre-approved plan where the Company or its Subsidiaries is entitled to rely on a favorable opinion letter from the Internal Revenue Service. All contributions to, and payments from, each Company Plan have been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAPand timely made.
(e) None of Parent the Company, its Subsidiaries or any of its ERISA Affiliates has at any time sponsored, contributed to, or been obligated under Title I or Title IV of ERISA to contribute to a “defined benefit plan” (as defined in ERISA Section 3(35)).
(f) None of the Company, its Subsidiaries or any of its ERISA Affiliates has ever had an “obligation to contribute” (as defined in ERISA Section 4212) to a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and 3(37)(A)). No Company Plan is a “multiple employer plan” (meaning a plan sponsored by two or more unrelated employers) or a “multiple employer welfare arrangement” (as defined in ERISA Section 3(40)).
(g) None of the Company, its Subsidiaries, or any of its ERISA Affiliates has any liability under Title IV of ERISA or Code Section 412.
(h) None of the Company or its Subsidiaries, or any of its ERISA Affiliates has maintained in the past nor currently maintains an Employee Benefit Plan providing welfare benefits (as defined in ERISA Section 3(1)) to employees after retirement or other separation of service except to the extent required under Part 6 of Title I or ERISA or Code Section 4980B or their successors or other applicable Law.
(i) The Company has complied in all material respects with the continuation coverage requirements of Section 1001 of COBRA, and ERISA Sections 601 through 608.
(j) Except as otherwise provided for in this Agreement or as set forth in Section 4.11(j) of the Company Disclosure Schedules, neither the execution of this Agreement, shareholder approval of this Agreement nor consummation of any of the transactions contemplated by this Agreement, (individually or in conjunction with any other event) will (i) entitle any current or former service provider to the Company or any of its Subsidiaries to retention or other bonuses, parachute payments, non-competition payments, or any entity which would be deemed other compensatory payment, (ii) entitle any current or former service provider to be a single employer with Parent the Company or any of its Subsidiaries under Code Section 414 contributes to severance pay or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV any increase in severance pay upon any termination of ERISA and/or Section 412 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISAemployment, (iii) result in any breach or violation of, or a multiple employer plan as described default under, any Company Plan, (iv) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount of compensation due to any individual service provider to the Company or any of its Subsidiaries, (v) give rise to any payment or benefit that would not be deductible in whole or in part by reason of Section 413(c) 280G of the Code, or (ivvi) limit or restrict the right of the Company or any of its Subsidiaries or, after the consummation of the transactions contemplated hereby, Parent or the Surviving Company, to merge, amend or terminate any of the Company Plans.
(k) Except as set forth in Section 4.11(k) of the Company Disclosure Schedule, no Company Plan is a multiple employer welfare non-qualified deferred compensation plan or arrangement (within the meaning of ERISA 3(40))409A of the Code.
(l) Neither the Company nor any of its Subsidiaries (x) has any obligation to reimburse or indemnify any participant in a Company Plan for any of the interest or penalties specified in Section 409A(a)(1)(B) of the Code that may be currently due or triggered in the future, and (y) has been required to report to any Governmental Entity any correction or taxes due as a result of a failure to comply with Section 409A of the Code.
(m) No Company Plan provides for the gross-up or reimbursement of any Taxes imposed by Section 4999 of the Code or otherwise, and neither the Company nor any of its Subsidiaries has any obligation to reimburse or indemnify any party for such Taxes.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(ain Section 4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Parent the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has, or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have have, any liability (such Employee Benefit Plans, other than the Company Manager Plans and whether or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (not material, the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans (or, in the case of any unwritten Company Plan, a written description thereof) and the most current version of any amendments thereto and, as applicable, any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptionsfavorable determination or opinion letters, and the most recent report on Form 5500 filing and the most current version of any applicable IRS determination letters summary plan description with respect to each such Company Plan, in each case, have been furnished or made available to the Company Parent or its Representatives.
(b) Set forth in Section 4.10(b) of the Company Disclosure Letter is a list, as of the date hereof, of all of the Employee Benefit Plans sponsored, maintained, contributed to, or required to be contributed to by Company Manager, Aspen ML LLC, an Oregon limited liability company (“Aspen”), or G▇▇▇▇▇▇ Funding LLC, a Delaware limited liability company, the Company’s servicer (“G▇▇▇▇▇▇”), or with respect to which Company Manager, Aspen, or G▇▇▇▇▇▇ has, or could reasonably be expected to have, any liability (such Employee Benefit Plans, whether or not material, the “Company Manager Plans”). True, correct and complete copies of each of the Company Manager Plans (or, in the case of any unwritten Company Manager Plan, a written description thereof) have been furnished or made available to Parent or its Representatives.
(c) Each Parent Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws.
(d) Each Company Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code has received a favorable determination letter, except where or may rely on a favorable opinion letter, issued by the failure IRS, and to so comply the knowledge of the Company, no events have occurred that would not reasonably be expected to have, individually result in any such letter being revoked or in the aggregate, a Parent Material Adverse Effectloss of the qualified status of any such Company Plan.
(ce) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(df) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(g) There are no material unfunded benefit obligations with respect to any Company Plan that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eh) None of Parent the Company, any of its Subsidiaries, or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 their respective ERISA Affiliates, contributes to or to, has an obligation to contribute to or otherwise has any liability (actual or contingent) with respect to, and no Parent Company Plan or Company Manager Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA or Section 412 of the Code.
(i) Except for continuation coverage to be provided, and for no longer than continuation coverage is required to be provided, pursuant to Section 4980B of the Code or any similar state Law for which any director, officer or employee (including any former director, officer or employee) is responsible for the full cost of such coverage, neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Company Plan or Company Manager Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any director, officer or employee (including any former director, officer or employee) of the Company, Company Manager or any of their respective Affiliates.
(j) Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former service provider of the Company, Company Manager or any of their respective Affiliates for any Tax incurred by such service provider under Sections 409A or 4999 of the Code.
(k) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment or benefit from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any current or former officers, employees or consultants of the Company, Company Manager or any of their respective Affiliates, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a multiple employer plan trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of or otherwise trigger any compensation or benefits payable to or in respect of any current or former employee, director or consultant of the Company, Company Manager or any of their respective Affiliates or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan.
(l) Except as described set forth in Section 413(c4.10(l) of the Company Disclosure Letter, no payment or benefit (or portion thereof) that is required to be made by the Company or any of its Subsidiaries under any Company Plan or this Agreement, or would be required to be made by the Surviving Company or Parent under any Company Plan or this Agreement as a result of the Transactions, with respect to any “disqualified individual” (as defined within Treas. Reg. 1.280G-1, Q&A 15), individually or in the aggregate, could be an “excess parachute payment” within the meaning of Section 280G(b) of the Code, or (iv) a multiple employer welfare arrangement (within the meaning of ERISA 3(40)).
Appears in 1 contract
Sources: Merger Agreement (Great Ajax Corp.)
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, maintained or contributed to by Parent or any of its Subsidiaries or with respect to which the Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters arrangements have been furnished or made available to the Company or its Representatives.
(b) Each To Parent’s knowledge, each Parent Plan has been administeredoperated, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) All material contributions required to be made to the Parent Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Neither Parent or nor any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event), (i) result in any material payment from Parent or any of its Subsidiaries becoming due, or materially increase in the amount of any compensation due, to any of their respective employees or consultants, (ii) materially increase any benefits otherwise payable under any Parent Plan, (iii) a multiple employer plan as described result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Parent Plan) or vesting of any compensation or benefits payable to or in respect of any employee, director or consultant or (iv) a multiple employer welfare arrangement (within limit or restrict the meaning right of ERISA 3(40))Parent or any of its Subsidiaries to merge, amend or terminate any Parent Plan.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) 4.10 of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters arrangements have been furnished or made available to the Company Parent or its Representatives.
(b) Each Parent To the Company’s knowledge, each Company Plan has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event), (i) result in any material payment from the Company or any of its Subsidiaries becoming due, or materially increase in the amount of any compensation due, to any of their respective employees or consultants, (ii) materially increase any benefits otherwise payable under any Company Plan, (iii) a multiple employer plan as described result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of any compensation or benefits payable to or in respect of any employee, director or consultant or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan. The Company has provided to Parent such information as is necessary for Parent to determine the treatment under Section 280G of the Code of the compensation and benefits to be provided as a multiple employer welfare arrangement result of the execution of this Agreement and the consummation of the transactions contemplated by this Agreement (within the meaning of ERISA 3(40))either alone or together with any other event) under any Company Plan or other compensation arrangement.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) Section 4.10 of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Company Plans. A “Company Plan” is each Employee Benefit Plans Plan sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have has any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”)obligation. True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with the most recent report filed on Form 5500 and summary plan description with respect to each Company Plan required to file a Form 5500.
(b) Each Parent Company Plan has been established, administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to so comply has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(c) As of the date of this Agreement, there There are no Proceedings, actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(d) All material contributions required to be made to the Company Plans pursuant to their terms or applicable Law have been timely made.
(e) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter (or in the case of a master or prototype plan, a favorable opinion or advisory letter) as to its qualification under the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification of such Company Plan. With respect to each Company Plan, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person, has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(f) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eg) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 sponsors, maintains, contributes to or has an obligation to contribute to, or has any liability with respect to (including on account of a member of its respective Aggregated Group) and no Parent Company Plan is, : (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA) or any other plan that is or was subject to Title IV of ERISA and/or ERISA, Section 302 of ERISA, or Section 412 of the Code, or (ii) a “multiemployer plan plan” within the meaning of Section 3(37) of ERISA.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Company Plan provides any retiree or post-employment or post-service medical or life insurance benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(i) Neither the execution and delivery of this Agreement, nor the consummation of the Transactions contemplated hereby, either alone or in combination with another event, could: (i) entitle any current or former employee, officer, director or other individual service provider of the Company or any Subsidiary thereof (or any dependent or beneficiary thereof) to any payment of compensation or benefits (whether in cash or property); (ii) increase the amount of compensation or benefits due or payable to any such Person set forth in the preceding clause (i); (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit; (iv) require a multiple employer plan contribution by the Company to any Company Plan; (v) restrict the ability of the Company to merge, amend or terminate any Company Plan, (vi) result in the forgiveness of any employee or service provider loan; or (vii) result in any payment (whether in cash, property or the vesting of property) to any “disqualified individual” (as described such term is defined in Treasury Regulation Section 1.280G-1) of the Company or any of its Subsidiaries that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” (as defined in Section 413(c280G(b)(1) of the Code) or result in the imposition on any person of an excise tax under Section 4999 of the Code.
(j) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or (iv) other agreement provides any individual with the right to, a multiple employer welfare arrangement (within gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A, Section 280G or Section 4999 of the meaning of ERISA 3(40))Code.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Firefly Disclosure Letter is a list, as of the date hereof, of all of the material Employee Firefly Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Plans.
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such plan is not written) of each of the Parent material Firefly Benefit Plans and the most current version of any related trust agreementsdocuments and favorable determination letters, insurance contracts or other funding arrangementsif applicable, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Ohm or its Representatives.
(b) Each Parent , along with the most recent report filed on Form 5500 and summary plan description with respect to each Firefly Benefit Plan has been administeredrequired to file a Form 5500, funded (if applicable) the most recently prepared actuarial reports and maintained in compliance with its terms financial statements, and all applicable Laws, except where the failure material correspondence to so comply would not reasonably be expected to have, individually or from any Governmental Entity received in the aggregate, past three (3) years addressing any matter involving actual or potential material liability relating to a Parent Material Adverse EffectFirefly Benefit Plan.
(c) As of Each Firefly Benefit Plan has been established, funded, administered and maintained in compliance in all material respects with all applicable Laws, including ERISA and the date of this Agreement, there Code.
(d) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of ParentFirefly, threatened against, or with respect to, any of the Parent Firefly Benefit Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There and there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in Proceedings by a Governmental Entity with respect to any of the notes thereto in accordance with GAAPFirefly Benefit Plans.
(e) All contributions required to be made by Firefly or any of its Subsidiaries to the Firefly Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP.
(f) Each Firefly Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Firefly Benefit Plan. With respect to any Firefly Benefit Plan, none of Firefly or any of its Subsidiaries, or, to the knowledge of Firefly, any other Person, has engaged in a transaction in connection with which Firefly or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Firefly and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or Firefly, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Firefly Benefit Plan is, (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law for which the recipient pays the full premium cost of coverage, no Firefly Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits to any Person.
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee of Firefly or any Subsidiary thereof (a “Firefly Employee”) or other current or former director, officer, employee or independent contractor under any Firefly Benefit Plan, (ii) directly or indirectly cause Firefly to transfer or set aside any material amount of assets to fund any material benefits under any Firefly Benefit Plan, (iii) a multiple employer plan as described in Section 413(c) limit or restrict the right to materially amend, terminate or transfer the assets of any Firefly Benefit Plan on or following the CodeCompany Merger Effective Time, or (iv) result in any payment from Firefly or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations § 1.280G-1) of Firefly or any of its Subsidiaries that would, individually or in combination with any other such payment from Firefly or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(j) Neither Firefly nor any Subsidiary of Firefly has any obligation to provide, and no Firefly Benefit Plan or other agreement provides any individual with the right to, a multiple employer welfare arrangement gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Firefly Benefit Plan or any other agreement, arrangement, or plan of Firefly or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a2.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsored(including, maintainedfor certainty, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries all Company Employment Agreements).
(the “Parent Plans”). b) True, correct and complete copies (or a written description of material terms if such plan is not written) of each of the Parent material Company Benefit Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives, along with a summary plan description or employee booklet with respect to each Company Benefit Plan, and all material correspondence to or from any Governmental Entity received or sent in the past three (3) years addressing any matter involving actual or potential material liability relating to a Company Benefit Plan. Further, prior to the Effective Time, Company shall use reasonable best efforts to provide or make available to Parent or its Representatives, copies of any trust documents, insurance contracts, funding agreements and favorable determination letters, if applicable and material, in each case related to the material Company Benefit Plans, along with the most recent report filed with a Governmental Entity, including a Form 5500 or Annual Information Return, and the most recently prepared actuarial reports.
(bc) Each Parent Company Benefit Plan has been established, registered (where required), funded, administered, funded (if applicable) invested and maintained in compliance in all material respects with its terms and all applicable Laws, including, to the extent applicable, ERISA and the Code, and in accordance with its terms, except where the failure to do so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(cd) As of Except as would not reasonably be expected to have, individually or in the date of this Agreementaggregate, a Company Material Adverse Effect: (i) there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of ParentCompany, threatened against, or with respect to, any of the Parent Company Benefit Plans, and there are no Proceedings initiated or reasonably expected to be initiated by a Governmental Entity, or any other party, with respect to any of the Company Benefit Plans and (ii) as of the date of this Agreement, neither Company nor any of its Subsidiaries has any liability (nor reasonably expects to incur any material liability) for any assessment, excise or penalty taxes with respect to any Company Benefit Plan.
(e) All contributions or premiums required to be made by Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, GAAP, except for such pending actions, suits or claims that as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(df) There are no Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and nothing has occurred that would reasonably be expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan, none of Company or any of its Subsidiaries, or, to the knowledge of Company, any other Person, has engaged in a transaction in connection with which Company or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material. Company and its Subsidiaries do not have any material unfunded benefit obligations that have liability (whether or not been properly accrued for in Parent’s financial statements assessed) under Sections 4980B, 4980D, 4980H, 6721 or disclosed in 6722 of the notes thereto in accordance with GAAPCode.
(eg) None of Parent or Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, : (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code; (ii) a “registered pension plan” or “multi-employer pension plan” that contains a “defined benefit provision” within, in each case, the meaning of the Tax Act; or (iii) a multiple multi-employer pension plan as described such term is defined under the Pension Benefits Standards Act (Canada) or any similar plan for purposes of pension standards legislation of another Canadian jurisdiction.
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any other applicable Law for which the recipient pays the full premium cost of coverage and other than as set forth in Schedule 2.10(h) of the Company Disclosure Letter, no Company Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person and neither Company nor any of its Subsidiaries has any liability to provide post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person or ever represented, promised or contracted to any Person that such Person would be provided with such benefits.
(i) Except as disclosed in Schedule 2.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (A) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee or other current or former director, officer, employee or independent contractor of Company or any Subsidiary under any Company Benefit Plan, (B) directly or indirectly cause Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Benefit Plan, (C) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the Effective Date, or (D) result in any payment from Company or any of its Subsidiaries (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulations §1.280G-1) of Company or any of its Subsidiaries that would, individually or in combination with any other such payment from Company or any of its Subsidiaries, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 413(c280G(b)(1) of the Code).
(j) Neither Company nor any Subsidiary of Company has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(k) Each Company Benefit Plan or any other agreement, arrangement, or (iv) plan of Company or any of its Subsidiaries that constitutes in any part a multiple employer welfare arrangement (nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a3.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Company Benefit Plans sponsoredPlans, maintainedexcluding, for scheduling purposes only, offer letters and employment agreements that do not provide severance protections or that provides for an at-will employment arrangement, or contributed vary in any material respect from the model versions of such agreements.
(b) With respect to each Company Benefit Plan that is not a PEO Plan and, to the extent made available by Parent or any of its Subsidiaries or the professional employer organization to the Company, with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Plans”). Trueeach PEO Plan, true, correct and complete current copies (or a written description of material terms if such plan is not written) of each of the Parent material Company Benefit Plans and the most current version of any related trust contracts, instruments and agreements, including administrative service agreements and group insurance contracts contracts, trust documents, and most recently received Internal Revenue Service favorable determination letter or other funding arrangementsopinion letter, summary plan descriptionsas applicable, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Vitesse or its Representatives, along with the most recent report filed on Form 5500, the currently applicable summary plan description or employee booklet, and any currently applicable summary of material modifications required under ERISA if any, with respect to each Company Benefit Plan, and all material non-routine correspondence to or from any Governmental Entity received or sent in the past three (3) years addressing any matter involving actual or potential material liability relating to a Company Benefit Plan.
(bc) Each Parent Company Benefit Plan that is not a PEO Plan and, to the knowledge of the Company, each PEO Plan has been established, registered (where required), funded, administered, funded (if applicable) invested and maintained in compliance in all material respects with its terms and all applicable Laws, except where including, to the failure to so comply extent applicable, ERISA and the Code, and in accordance with its terms.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
: (ci) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of ParentCompany, threatened against, or with respect to, any of the Parent Company Benefit Plans that are not PEO Plans and, to the knowledge of the Company, Company Benefit Plans that are PEO Plans, and there are no Proceedings initiated or reasonably expected to be initiated by a Governmental Entity, or any other party, with respect to any of the Company Benefit Plans that are not PEO Plans and, to the knowledge of the Company, any Company Benefit Plans that are PEO Plans; and (ii) as of the date of this Agreement, neither Company nor any of its Subsidiaries has any liability (nor reasonably expects to incur any liability) for any assessment, excise or penalty taxes with respect to any Company Benefit Plan that is not a PEO Plan or, to the knowledge of the Company, any PEO Plan.
(e) All contributions or premiums required to be made by Company or any of its Subsidiaries to the Company Benefit Plans pursuant to their terms or applicable Law have been timely made or accrued or otherwise been adequately reserved to the extent required by, and in accordance with, IFRS, except for such pending actions, suits or claims that as would not reasonably be expected to have, individually or in the aggregate, a Parent Company Material Adverse Effect.
(df) There Except as set forth on Schedule 3.10(f) of the Company Disclosure Letter, there are no material unfunded benefit obligations that have not been properly accrued for in Parent’s Company's financial statements statements, and all material contributions or disclosed amounts payable by Company or any of its Subsidiaries with respect to each Company Benefit Plan in the notes thereto respect of current or prior plan years have been paid or accrued in accordance with GAAPIFRS.
(eg) Except as set forth on Schedule 3.10(g) of the Company Disclosure Letter, each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has either been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code or is a pre-approved plan as to which the adopter is entitled to rely on the opinion letter issued by the Internal Revenue Service with respect to qualified status of the form of such plan under Section 401(a) of the Code, and nothing has occurred that, to the knowledge of the Company, would be reasonably expected to adversely affect the qualification or Tax exemption of any such Company Benefit Plan. With respect to any Company Benefit Plan, none of Company or any of its Subsidiaries or, to the knowledge of Company, any other Person, has engaged in a transaction in connection with which Company or its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code. None of Company or any of its Subsidiaries have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(h) None of Parent or Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to, or in the past six (6) years has sponsored, maintained, contributed to or had an obligation to contribute to, or has any current or contingent liability or obligation under or with respect to, and no Parent Company Benefit Plan is, : (i) a plan that is or was subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code; (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA; (iii) a multiple employer plan as described in within the meaning of Section 413(c) of the Code, or ; (iv) a multiple "registered pension plan" or "multi-employer pension plan" that contains a "defined benefit provision" within, in each case, the meaning of the Tax Act; or (v) a multi-employer pension plan as such term is defined under the Pension Benefits Standards Act (Canada) or any similar plan for purposes of pension standards legislation of another Canadian jurisdiction.
(i) Other than continuation coverage pursuant to Section 4980B of the Code or any other applicable Law for which the recipient pays the full premium cost of coverage, no Company Benefit Plan provides retiree or post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person and neither Company nor any of its Subsidiaries has any liability to provide post-employment or post-service medical, disability, life insurance or other welfare benefits coverage to any Person or ever represented, promised or contracted to any Person that such Person would be provided with such benefits.
(j) Except as disclosed in Schedule 3.10(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, alone or in combination with any other event, (i) entitle any employee or other current or former director, officer, employee or independent contractor of Company or any Subsidiary to severance pay or severance benefits; (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any employee or other current or former director, officer, employee or independent contractor of Company or any Subsidiary under any Company Benefit Plan; (iii) directly or indirectly cause Company to transfer or set aside any material amount of assets to fund any material benefits under any Company Benefit Plan; (iv) limit or restrict the right to materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the Effective Date; or (v) result in any payment from Company or any of its Subsidiaries (whether in cash or property or the vesting of property) to any "disqualified individual" (as such term is defined in Treasury Regulations §1.280G-1) of Company or any of its Subsidiaries that would, individually or in combination with any other such payment from Company or any of its Subsidiaries, reasonably be expected to constitute an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(k) Neither Company nor any Subsidiary of Company has any obligation to provide, and no Company Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(l) Each Company Benefit Plan or any other agreement, arrangement (or plan of Company or any of its Subsidiaries that constitutes in any part a nonqualified deferred compensation plan within the meaning of ERISA 3(40))Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a) of the Parent Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, maintained or contributed to by Parent or any of its Subsidiaries or with respect to which the Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “"Parent Plans”"). True, correct and complete copies of each of the Parent Plans and the most current version of any related trust agreements, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters arrangements have been furnished or made available to the Company or its Representatives.
(b) Each To Parent's knowledge, each Parent Plan has been administeredoperated, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(c) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parent, threatened against, or with respect to, any of the Parent Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) All material contributions required to be made to the Parent Plans pursuant to their terms have been timely made.
(e) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s 's financial statements or disclosed in the notes thereto in accordance with GAAP.
(ef) None of Neither Parent or nor any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code.
(g) Except as contemplated by this Agreement, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event), (i) result in any material payment from Parent or any of its Subsidiaries becoming due, or materially increase in the amount of any compensation due, to any of their respective employees or consultants, (ii) materially increase any benefits otherwise payable under any Parent Plan, (iii) a multiple employer plan as described result in Section 413(c) the acceleration of the Codetime of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Parent Plan) or vesting of any compensation or benefits payable to or in respect of any employee, director or consultant or (iv) a multiple employer welfare arrangement (within limit or restrict the meaning right of ERISA 3(40))Parent or any of its Subsidiaries to merge, amend or terminate any Parent Plan.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent the Company or any of its Subsidiaries or with respect to which Parent the Company or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries (the “Parent Company Plans”). True, correct and complete copies of the following with respect to each of the Parent Plans and Company Plans, to the most current version of any related trust agreementsextent applicable, insurance contracts or other funding arrangements, summary plan descriptions, the most recent Form 5500 filing and the most current version of any applicable IRS determination letters have been furnished or made available to the Company Parent or its Representatives: (i) the most recent copies of all documents constituting or embodying such Company Plan, (ii) the most recent Internal Revenue Service determination or opinion letter, (iii) the most recent summary plan description, all summaries of material modifications, and the three most recent annual reports and summary annual reports (and any other material summaries or employee communications), (iv) all current trust agreements and insurance contracts relating to the funding or payment of benefits under such Company Plan, (v) for the three most recently completed plan years (A) Form 5500 and attached schedules and (B) financial statements, and (vi) all material correspondence with any governmental authority since December 10, 2018.
(b) Each Parent Company Plan and any related trust has been administered, funded (if applicable) and maintained in compliance with its terms and all applicable Laws, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectall material respects.
(c) Each Company Plan that is intended to be qualified under Section 401(a) of the Code, and each trust that is related to a Company Plan and intended to be tax-exempt under Section 501(a) of the Code, has received a favorable determination or opinion letter from the IRS regarding its tax-qualified status and tax-exemption, respectively, and to the Company’s Knowledge, nothing has occurred that would adversely affect any such qualification or tax exemption of any such Company Plan or related trust.
(d) Except as required by applicable Law, no material Company Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Person, and the Company has no obligation to provide such benefits except for any payment or reimbursement of COBRA premiums as part of a severance benefit or other coverage required by COBRA or applicable Law.
(e) As of the date of this Agreement, there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or result in material liability to the aggregate, a Parent Material Adverse EffectCompany.
(df) All material contributions required to be made to the Company Plans pursuant to their terms have been timely made.
(g) There are no material unfunded benefit obligations that have not been properly accrued for in Parentthe Company’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(eh) None of Parent the Company or any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any of its Subsidiaries under Code Section 414 contributes to or has an obligation to contribute to, and no Parent Company Plan is, (i) a plan subject to Title IV of ERISA and/or Section 412 of the Code, (ii) including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA, or Section 412 of the Code, (iiiii) a “multiple employer plan as described in plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the CodeCode or (iii) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(i) Except as set forth in Schedule 4.10(i) of the Company Disclosure Letter, the execution and delivery of this Agreement and the consummation of the Transactions will not (either alone or in combination with another event), (i) result in any payment from the Company or any of its Subsidiaries becoming due, or increase in the amount of any compensation due, to any of their respective officers, employees or consultants, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment (including the funding of a trust or transfer of any assets to fund any benefits under any Company Plan) or vesting of any compensation or benefits payable to or in respect of any current or former employee, director or consultant or (iv) a multiple employer welfare arrangement limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Plan. Schedule 4.10(i) of the Company Disclosure Letter separately identifies, by individual, the Company’s estimate, as of the date hereof, of the value of the benefits required to be scheduled on Schedule 4.10(i) of the Company Disclosure Letter and the value of any severance payments that may become due and payable following the execution and delivery of this Agreement.
(within j) Except as set forth in Schedule 4.10(j) of the meaning Company Disclosure Letter, none of ERISA 3(40))the execution and delivery hereof, stockholder or other approval hereof or the consummation of the Transactions could, either alone or in combination with another event, result in the payment by the Company or any of its Subsidiaries of any amount that could, individually or in combination with any other such payment, be an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. The Company has no obligation to gross-up, indemnify or otherwise reimburse any current or former employee, director or other individual service provider of the Company or any of its Subsidiaries for any Tax incurred by such individual under Sections 409A or 4999 of the Code.
Appears in 1 contract
Compensation Benefits. (a) Set forth on Schedule 5.10(a4.10(a) of the Parent Company Disclosure Letter is a list, as of the date hereof, list of all of the material Employee Benefit Plans sponsored, maintained, or contributed to by Parent or any of its Subsidiaries or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any liability or that provide benefits to any individual performing services to Parent or any of its Subsidiaries Company Plans.
(the “Parent Plans”). b) True, correct and complete copies of each of the Parent Company Plans and the most current version of any related trust agreements, insurance contracts documents or other funding arrangements, summary plan descriptions, arrangements and the most recent Form 5500 filing and the most current version of any applicable IRS determination letters favorable determination, advisory or opinion letters, if applicable, have been furnished or made available to the Company Isla or its Representatives, along with, to the extent applicable, the most recent report filed on Form 5500 (with all schedules and attachments), the most recent summary plan description (with all summaries of material modifications thereto), the most recent financial statements and actuarial or other valuation reports, and all material non-routine correspondence to or from any Governmental Entity received in the last three years.
(bc) Each Parent Company Plan has been established, administered, operated, funded (if applicable) and maintained in material compliance with its terms and in compliance in all material respects with all applicable Laws, except where including ERISA and the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectCode.
(cd) As of the date of this Agreement, there There are no actions, suits or claims material Proceedings pending (other than routine claims for benefits) or, to the knowledge of Parentthe Company, threatened against, or with respect to, any of the Parent Company Plans, except for such pending actions, suits or claims that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(d) There are no material unfunded benefit obligations that have not been properly accrued for in Parent’s financial statements or disclosed in the notes thereto in accordance with GAAP.
(e) All material contributions required to be made by the Company or any of its Subsidiaries to the Company Plans pursuant to their terms or applicable Law have been timely made.
(f) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code and has received a favorable determination letter (or in the case of a master or prototype plan, a favorable opinion or advisory letter) as to its qualification under the Code and nothing has occurred, whether by action or failure to act, that could reasonably be expected to adversely affect the qualification of such Company Plan. With respect to each Company Plan, none of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other Person, has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that would be material. The Company and its Subsidiaries do not have any material liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) None of Parent or the Company, any of its Subsidiaries or any entity which would be deemed to be a single employer with Parent or any member of its Subsidiaries under Code Section 414 their respective Aggregated Groups sponsors, maintains, contributes to or has an obligation to contribute to (or has in the last six years sponsored, maintained, contributed to or had an obligation to contribute to), or has any current or contingent liability or obligation under or with respect to, and no Parent Company Plan is, : (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA) or a plan that is or was subject to Title IV of ERISA and/or ERISA, Section 302 of ERISA, or Section 412 or 4971 of the Code, Code or (ii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan plan” (within the meaning of Section 3(37) of ERISA).
(h) Other than continuation coverage pursuant to Section 4980B of the Code or any similar state Law, no Company Plan provides any retiree or post-employment or post-service medical or life insurance benefits to any Person, and none of the Company or any of its Subsidiaries has any obligation to provide such benefits.
(i) Except as set forth on Schedule 4.10(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Merger could, either alone or in combination with another event, (i) entitle any current or former Company Employee, director or other service provider of the Company or any of its Subsidiaries to severance pay, any increase in severance pay or any other payment; (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any current or former Company Employee, director or other service provider of the Company or any of its Subsidiaries; (iii) a multiple employer plan directly or indirectly cause or require the Company to transfer or set aside any amount of assets to fund any benefits under any Company Plan; (iv) otherwise give rise to any material liability under any Company Plan, limit or restrict the right to amend, terminate or transfer the assets of any Company Plan on or following the Merger Effective Time; or (v) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as described such term is defined in Treasury Regulation Section 1.280G-1) of the Company or any of its Subsidiaries that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (as defined in Section 413(c280G(b)(1) of the Code).
(j) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A, Section 280G or Section 4999 of the Code.
(k) Each Company Plan or any other agreement, arrangement, or (iv) plan of the Company or any of its Subsidiaries that constitutes, in any part, a multiple employer welfare arrangement “nonqualified deferred compensation plan” (within the meaning of ERISA 3(40))Section 409A of the Code) has been operated and maintained in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(l) No Company Plan is maintained outside the jurisdiction of the United States or covers any Company Employees or other service providers who reside or perform services primarily outside of the United States.
Appears in 1 contract