Employee Benefit Programs (a) Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by ▇▇▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇▇▇ (a "▇▇▇▇▇▇▇ Affiliate") ("▇▇▇▇▇▇▇ Employee Programs").
(b) Each ▇▇▇▇▇▇▇ Employee Program which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section and except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such ▇▇▇▇▇▇▇ Employee Program through and including the Closing Date (or, if earlier, the date that such ▇▇▇▇▇▇▇ Employee Program). No event or omission has occurred which would cause any such ▇▇▇▇▇▇▇ Employee Program to lose its qualification under the applicable Code section.
(c) Neither ▇▇▇▇▇▇▇ nor any ▇▇▇▇▇▇▇ Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the ▇▇▇▇▇▇▇ Employee Programs. With respect to any ▇▇▇▇▇▇▇ Employee Program, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) material failure to ----- comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any of (i), (ii), or (iii), could subject ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of ▇▇▇▇▇▇▇, threatened with respect to any such ▇▇▇▇▇▇▇ Employee Program.
(d) Except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, during the last 3 years, neither ▇▇▇▇▇▇▇ nor any ▇▇▇▇▇▇▇ Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "▇▇▇▇▇▇▇ Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA), or has promised to provide such post-termination benefits, for a period longer than 12 months or (iii) has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by ▇▇▇▇▇▇▇ prior to the date of this Agreement for a period longer than 12 months.
(e) With respect to each ▇▇▇▇▇▇▇ Employee Program, complete and correct copies of the following documents (if applicable to such ▇▇▇▇▇▇▇ Employee Program) have previously been delivered to RMSI: (i) all documents embodying or governing such ▇▇▇▇▇▇▇ Employee Program, and any funding medium for the ▇▇▇▇▇▇▇ Employee Program (including, without limitation, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such ▇▇▇▇▇▇▇ Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such ▇▇▇▇▇▇▇ Employee Program; (v) the summary plan description for such ▇▇▇▇▇▇▇ Employee Program (or other descriptions of such ▇▇▇▇▇▇▇ Employee Program provided to employees) and all modifications thereto; (vi) any insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such ▇▇▇▇▇▇▇ Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the last three years.
(f) Each ▇▇▇▇▇▇▇ Employee Program may be amended, terminated, or otherwise modified by ▇▇▇▇▇▇▇ to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any ▇▇▇▇▇▇▇ Employee Program and, except as disclosed on Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, no condition exists which would limit the right of ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Affiliate to so amend, terminate or otherwise modify such ▇▇▇▇▇▇▇ Employee Program.
(g) No liability under Title IV or Section 302 of ERISA has been incurred by ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate that has not been satisfied in full and no condition exists that presents a material risk to ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate of incurring any such liability, other than liability for premiums due to the PBGC (which premiums have been paid when due).
(h) The PBGC has not instituted proceedings to terminate any ▇▇▇▇▇▇▇ Title IV Plan and no condition exists that presents a material risk that such proceedings will be instituted.
(i) Except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, with respect to each ▇▇▇▇▇▇▇ Title IV Plan, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(j) No ▇▇▇▇▇▇▇ Title IV Plan or any trust established there under has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each ▇▇▇▇▇▇▇ Title IV Plan ended prior to the Closing Date.
(k) No amounts payable under the ▇▇▇▇▇▇▇ Employee Programs will fail to be deductible for federal income tax purposes by virtue of Section 162(a)(1), 162(m) or 280G of the Code.
Other Employee Benefits In addition to the foregoing, during the Employment Term, the Employee will be entitled to participate in and to receive benefits as a senior executive under all of the Company’s employee benefit plans, programs and arrangements available to senior executives, subject to the eligibility criteria and other terms and conditions thereof, as such plans, programs and arrangements may be duly amended, terminated, approved or adopted by the Board from time to time.
Fiduciaries of Employee Benefit Plan This Article does not apply to any Proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in that Person’s capacity as such, even though that Person may also be an Agent of the Trust as defined in Section 1 of this Article. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager, or other fiduciary may be entitled by contract or otherwise which shall be enforceable to the extent permitted by applicable law other than this Article.
EMPLOYEE BENEFIT PROGRAM (i) During the TERM, the EMPLOYEE shall be entitled to participate in all formally established employee benefit, bonus, pension and profit-sharing plans and similar programs that are maintained by the EMPLOYERS from time to time, including programs in respect of group health, disability or life insurance, reimbursement of membership fees in civic, social and professional organizations and all employee benefit plans or programs hereafter adopted in writing by the Boards of Directors of the EMPLOYERS, for which senior management personnel are eligible, including any employee stock ownership plan, stock option plan or other stock benefit plan (hereinafter collectively referred to as the "BENEFIT PLANS"). Notwithstanding the foregoing sentence, the EMPLOYERS may discontinue or terminate at any time any such BENEFIT PLANS, now existing or hereafter adopted, to the extent permitted by the terms of such plans and shall not be required to compensate the EMPLOYEE for such discontinuance or termination.
(ii) After the expiration of the TERM or the termination of the employment of the employee for any reason other than JUST CAUSE (as defined hereinafter), the EMPLOYERS shall provide a group health insurance program in which the EMPLOYEE and his spouse will be eligible to participate and which shall provide substantially the same benefits as are available to retired employees of the EMPLOYERS on the date of this AGREEMENT until both the EMPLOYEE and his spouse become 65 years of age; provided, however that all premiums for such program shall be paid equally by the EMPLOYERS and the EMPLOYEE and/or his spouse after the EMPLOYEE's retirement; provided further, however, that the EMPLOYEE may only participate in such program for as long as the EMPLOYERS elect in their sole discretion to make available an employee group health insurance program which permits the EMPLOYERS to make coverage available for retirees.
Employee Benefit Plans (i) For a period of one year after the Closing, Parent shall either (A) cause the Surviving Corporation to continue to sponsor and maintain the Company Benefit Plans, or (B) provide benefits to the employees of the Company who continue to be employed by the Surviving Corporation (the “Company Employees”) and their eligible dependents under employee benefit plans, programs, policies or arrangements that in the aggregate are no less favorable than those benefits provided to the Company Employees and their eligible dependents by the Company immediately prior to the Closing Date. Except to the extent necessary to avoid duplication of benefits, Parent shall recognize (or cause to be recognized) service with the Company and any predecessor entities (and any other service credited by the Company under similar benefit plans) for purposes of vesting, eligibility to participate, severance and vacation accrual under employee benefit plans or arrangements maintained by Parent, the Surviving Corporation or any subsidiary of Parent, if any, in which the Company employees are eligible to participate following the Closing. If Parent offers health benefits to the Company Employees or their eligible dependents under a group health plan that is not a Company Benefit Plan that was in effect on the Closing Date, Parent shall (x) waive any pre-existing condition exclusion under such group health plan to the extent coverage existed for such condition under the corresponding Company Benefit Plan covering such Company Employee or eligible dependent on the Closing Date and (y) credit each Company Employee and eligible dependent with all deductible payments and co-payments paid by such Company Employee or eligible dependent during the current plan year under any Company health plan covering such Company Employee or eligible dependent prior to the Closing Date for purposes of determining the extent to which any such Company Employee or eligible dependent has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximum under any health plan for such plan year.
(ii) For a period of one year after the Closing Date, Parent shall cause the Company to maintain any severance pay plan, policy or agreement of the Company in effect as of the Closing Date on terms no less favorable to any person employed by the Company on the Closing Date than the terms of such plan on the date of this Agreement. Parent shall cause the Company to pay to any person employed by the Company on the Closing Date who becomes eligible to receive a severance payment under such severance pay plan or policy of the Company at any time after the Closing Date and prior to the first anniversary thereof an amount equal to the greater of (A) the severance amount payable to such employee under such severance pay plan or policy of the Company and (B) the severance amount that would be payable to a comparable employee of Parent under Parent’s severance program then in effect.
(iii) After the Closing Date, Parent shall cause the Surviving Corporation to honor all obligations under all of the employment, severance, consulting and similar agreements of the Company existing on the date hereof.
(iv) Nothing herein shall be construed as giving any employee of the Company any right to continued employment after the Closing Date.
