Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the following: (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, (ii) the annual report (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan), if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions of such Plan provided to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the Plans. (b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Plan have been timely filed. (c) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan. (d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law. (e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA. (f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with another event: (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary. (g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Pomeroy It Solutions Inc), Merger Agreement (Pomeroy It Solutions Inc)
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the following: (i) all Each “employee benefit plans plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA) and each other pension, as amended ("ERISA"))retirement, all "specified fringe benefit plans" (as defined in Section 6039D of the Codesupplemental retirement, and all deferred compensation, excess benefit, profit sharing, bonus, incentive, stock purchase, stock ownership, stock option, stock purchaseappreciation right, restricted stockprofits interest, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirementemployment, severance, change in salary continuation, termination, change-of-control, retention health, life, disability, group insurance, vacation, holiday and fringe benefit plan, program, contract, or other benefit plansarrangement (whether written or unwritten, programs qualified or arrangementsnonqualified, funded or unfunded and all employment contracts including any that have been frozen or agreements terminated) maintained, contributed to, or required to which be contributed to, by the Company or any and/or each ERISA Affiliate is a party, or with respect to which the Company or and/or any ERISA Affiliate has any obligation or which are maintainedLiability (each, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employeea “Benefit Plan”), officer, director or consultant is set forth on Section 2.17(a) of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, (ii) the annual report (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan), if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions of such Plan provided to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the PlansDisclosure Schedule.
(b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all As applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Benefit Plan, the Company has made available to Parent true and complete copies of (i) all Benefit Plans, including written summaries of Benefit Plans for which no written document exists, and related trust agreements, annuity contracts or other funding instruments; (ii) the latest Internal Revenue Service determination letter or opinion letter obtained with respect to any such Benefit Plan have been timely filedintended to be qualified or exempt under Section 401 or 501 of the Internal Revenue Code, as applicable; (iii) Forms 5500 and certified financial statements for the most recently completed fiscal year for each Benefit Plan required to file such form, together with the most recent actuarial report, if any, prepared by the Benefit Plan’s enrolled actuary; (iv) all summary plan descriptions and summaries of material modification for each Benefit Plan; (v) all summaries furnished to employees or other service providers for all Benefit Plans for which a summary plan description is not required; (vi) the most recent written results of all compliance testing required pursuant to Sections 125, 401(a)(4), 401(k), 401(m), 410(b), 415, and 416 of the Code; and (vii) any non-routine filings made during the past three (3) years with a Governmental Authority relating to a Benefit Plan.
(c) Except as set forth on Section 2.17(c) of the Disclosure Schedule, the Company and each ERISA Affiliate are in compliance in all material respects with the provisions of ERISA, the Code and other Laws applicable to the Benefit Plans. Each Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA, the Code and other Laws.
(d) The Company Group has timely made all contributions and payments required to be made with respect to such Benefit Plans and, with respect to any benefits accrued thereunder for which contributions or payments are not yet required to be made, such obligations have been timely reflected in the Financial Statements.
(e) There is no action, order, writ, injunction, judgment or decree outstanding or claim, suit, litigation, arbitral action, governmental audit or investigation or other Proceeding relating to or seeking benefits under any Benefit Plan that is pending or, to the Knowledge of the Company, threatened against either the Company, a Company Subsidiary or any ERISA Affiliate other than routine claims for benefits.
(f) The Benefit Plans which are “employee pension benefit plans” (as defined in Section 3(2) of ERISA) and which are intended to be qualified under meet the qualification requirements of Section 401(a) of the Code (each, a “Pension Plan”) have received determination letters or Section 401(k) of the Code has received a favorable determination letter from the IRS, or opinion letters on which such plan is entitled to rely on a favorable opinion issued by from the IRSInternal Revenue Service to the effect that such plans are qualified and exempt from federal income taxes under Sections 401(a) and 501(a) of the Code, respectively, and to the knowledge each such Pension Plan is so qualified. No member of the Company no fact Group or event any ERISA Affiliate maintains, sponsors, contributes to or otherwise has occurred since the date of such determination any Liability (contingent or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISAotherwise) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Pension Plan that is subject to the provisions of Section 302 or Title IV of ERISA, is an employee stock ownership plan within the meaning of ERISA or Section 4975(e)(7) 412 of the Code. Neither Company nor any each ERISA Affiliate has ever contributed to, a voluntary employee beneficiary association or is a been required to contribute to any “multiemployer plan plan” (within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement ) and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither neither the Company nor any ERISA Affiliate sponsors has any liability (contingent or has sponsored any otherwise) relating to the withdrawal or partial withdrawal from a multiemployer plan.
(g) The Company and each ERISA Affiliate have complied with the notice and continuation coverage requirements of Section 4980B of the Code and the regulations thereunder with respect to each Benefit Plan that is a group health plan within the meaning of Section 5000(b)(1) of the Code. No Benefit Plan provides for any post-employment or post-retirement health benefits, including, without limitation, death or medical benefits, beyond termination of service or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required retirement other than coverage mandated by Section 4980B of the Code or similar state lawother applicable Law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(fh) Except as set forth in on Section 4.21(f2.17(h) of the Disclosure Schedule, neither the negotiationCompany’s execution of, execution and delivery of this Agreement nor the consummation performance of the transactions contemplated hereby will, by this Agreement will not either alone or in combination connection with another event: any other event(s) (iI) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee employee, former employee, director, officer, or former employee or group of employees or former employees independent contractor of the Company or any Subsidiary; , (iiII) increase any amount of compensation or benefits otherwise payable under any Benefit Plan; , (iiiIII) result in the acceleration of the time of payment payment, funding or vesting of any such rights benefits under any Benefit Plan, (IV) require any contributions or benefits; payments to fund any obligations under any Benefit Plan or (ivV) otherwise result limit the right to merge, amend or terminate any Benefit Plan.
(i) No payment which is or may be made by, from or with respect to any Benefit Plan, to any employee, former employee, director, officer or independent contractor of the Company Group, either alone or in the payment of conjunction with any "other payment, event or occurrence, will or could reasonably be characterized as an “excess parachute payment" ” under Section 280G of the Code.
(j) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” within the meaning of Section 280G 409A of the Code, complies in both form and operation with the requirements of Section 409A of the Code with respect so that no amounts paid pursuant to a current or former employee of the Company or any Subsidiary.
(g) An entity such Benefit Plan is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses subject to tax under common control within the meaning of Sections 414(b), (c), (m) or (o) Section 409A of the Code.
(k) The Company, the Company Subsidiaries and each ERISA Affiliate have, for purposes of each Benefit Plan and for all other purposes, correctly classified all individuals performing services for the Company Group as common law employees, leased employees, independent contractors or agents, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Global Partner Acquisition Corp.)
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the following: (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, ) and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "“Company Plans"”) and all amendments thereto, (ii) the annual report (Form 5500) filed with the Internal Revenue Service ("“IRS"”) for the last three plan years, if any, relating to a Company Plan, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan)letter, if any, relating to a Company Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Plan, (v) the most recent summary plan description for such Company Plan (or other descriptions of such Company Plan provided to employees) and all modifications thereto, and (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii. Section 4.20(a) of the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Disclosure Schedule lists each Company or an ERISA Affiliate other than pursuant to the PlansPlan.
(b) Each Company Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Company Plan have been timely filed. All contributions, premiums or other payments that are due have been paid on a timely basis with respect to each Company Plan.
(c) Each Company Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion letter issued by the IRSIRS on the prototype or volume submitter document upon which the Company Plan is based, and to the knowledge of the Company Company, no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Company Plan or the exempt status of any such its accompanying trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsors sponsors, or has sponsored or has any liability with respect to any Company Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association ERISA or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Company Plan that provides for nor is the Company a party to any agreement that could require the Company to provide any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by claims, Actions, or on behalf of investigations with respect to any Company Plan, by any employee or beneficiary covered under any such Company Plan, or otherwise involving any such Company Plan (other than routine undisputed claims for benefits), and . To the Company has no knowledge of any facts which could give rise to any actionthe Company, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Company Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither Neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with another event: (i) result in any payment (including, but not limited to, any retention or other bonuses, change of control payments, severance payments, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "“excess parachute payment" ” within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary.
(g) Each Company Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code), has been maintained in compliance in all material respects with the plan document and the requirements of Section 409A of the Code and applicable guidance issued thereunder, no amounts under any such plan, agreement or arrangement is or has been subject to the interest and additional tax set forth under Section 409A(a)(1)(B) of the Code and the Company has no obligation to gross-up or indemnify any service provider with respect to any such tax.
(h) An entity is an "“ERISA Affiliate" ” of the Company if it is any corporationwould have, trade or business whichwithin the past six years, together been considered a single employer with the Company, is a member of a controlled group of corporations or a group of trades or businesses Company under common control within the meaning of Code Sections 414(b), (c), (m) or (o) of the Code).
Appears in 1 contract
Sources: Merger Agreement (Physicians Formula Holdings, Inc.)
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a5.23(a) of the Company Disclosure ScheduleSchedule contains a true and complete list of each pension, of the following: (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974benefit, as amended ("ERISA"))retirement, all "specified fringe benefit plans" (as defined in Section 6039D of the Codecompensation, and all bonusemployment, stock optionconsulting, stock purchase, restricted stock, incentive, equity or equityprofit-based compensationsharing, deferred compensation, retiree medical incentive, bonus, performance award, phantom equity, stock or life insurance, supplemental retirement, severancestock-based, change in control, retention retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe benefit and other similar agreement, plan, policy, program or other arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plansplan” within the meaning of Section 3(3) of ERISA, programs whether or arrangementsnot tax-qualified and whether or not subject to ERISA, and all employment contracts which is or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are been maintained, sponsored, contributed to, or required to be contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director director, retiree, independent contractor or consultant of the Company or any spouse or dependent of such individual, or under which the Company or any of its ERISA Affiliate Affiliates has or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (collectivelyas listed on Section 5.23(a) of the Company Disclosure Schedule, each, a “Benefit Plan”). The Company has separately identified in Section 5.23(a) of the "Plans"Company Disclosure Schedule (i) each Benefit Plan that contains a change in control provision and all amendments thereto, (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to, by the annual report (Form 5500) filed with the Internal Revenue Service ("IRS") Company primarily for the last three plan years, benefit of employees outside of the United States (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a “Non-U.S. Benefit Plan”), if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions of such Plan provided to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the Plans.
(b) Each With respect to each Benefit Plan, the Company has made available to Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been operated in reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material respects in accordance with its terms plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and the requirements of all applicable Lawscontracts, including ERISA administration agreements and the Codesimilar agreements, and all reportsinvestment management or investment advisory agreements, documents now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and notices required coverage, COBRA communications, employee handbooks and any other written communications (or a description of any oral communications) relating to be filed with respect to each Plan have been timely filed.
any Benefit Plan; (cv) Each in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the IRS and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be filed, a copy of the two most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (ix) copies of material notices, letters or other correspondence from the IRS, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Each Benefit Plan and any related trust has been established, administered and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA, the Code or and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(k401(a) of the Code has (a “Qualified Benefit Plan”) is so qualified and received a favorable and current determination letter from the IRSIRS with respect to the most recent five (5)-year filing cycle, or is entitled with respect to a prototype or volume submitter plan, can rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or an opinion letter or letters from the IRS to the prototype plan or volume submitter plan sponsor, to the effect that would such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trustQualified Benefit Plan. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have Nothing has occurred with respect to any PlanBenefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to Tax or penalty under Sections 4975 or 4980H of the Code. All benefits, contributions and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with GAAP. All Non-U.S. Benefit Plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither Neither the Company nor any of its ERISA Affiliate sponsors Affiliates has (i) incurred or has sponsored reasonably expects to incur, either directly or indirectly, any Plan that is subject to the provisions of material Liability under Title I or Title IV of ERISA, is an ERISA or related provisions of the Code or applicable local Law relating to employee stock ownership plan within benefit plans; (ii) failed to timely pay premiums to the meaning of Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit Plan; (iv) engaged in any transaction which would give rise to liability under Section 4975(e)(74069 or Section 4212(c) of ERISA; (v) incurred Taxes under Section 4971 of the Code, Code with respect to any Single Employer Plan; or (vi) participated in a voluntary employee beneficiary association or multiple employer welfare arrangements (MEWA).
(e) With respect to each Benefit Plan (i) no such plan is a multiemployer plan within the meaning of Section 3(37) of ERISA (each a “Multiemployer Plan”); (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan or the plan of any ERISA Affiliate maintained or contributed to within the last six (6) years is a Single Employer Plan subject to Title IV of ERISA; and (v) no “reportable event,” as defined in Section 4043 of ERISA, or with respect to which the reporting requirement has any obligation not been waived has occurred with respect to any such plan plan.
(f) Each Benefit Plan can be amended, terminated or arrangement otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Buyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and does has not reasonably expect made any representations to incur any withdrawal liability relating employee, officer, director, independent contractor or consultant, whether or not legally binding, to a multiemployer plan. Neither adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(g) Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliate sponsors or Affiliates has sponsored any Plan that provides for any Liability to provide post-employment termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-retirement termination or retiree health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state lawbenefits.
(eh) As of the date of this Agreement, there are There is no pending or, to the knowledge Knowledge of the Company, threatened claim, action or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such proceeding relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(i) There has been no amendment to, announcement by the Company has no knowledge or any of its Affiliates relating to, or change in employee participation or coverage under, any facts which could give rise to any action, suit, grievance, arbitration Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other manner of litigation or claim than on a de minimis basis) with respect to the Plansany director, officer, employee, independent contractor or consultant, as applicable. Neither None of the Company nor any of its ERISA Affiliates has engaged in any transactions with respect commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that could is subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B 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. The Company does not have any obligation to gross up, indemnify or Sections 406otherwise reimburse any individual for any excise taxes, 409 interest or 502(i) penalties incurred pursuant to Section 409A of ERISAthe Code.
(fk) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(l) Except as set forth in Section 4.21(f5.23(l) of the Company Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement nor the consummation any of the transactions contemplated hereby will, by this Agreement will (either alone or in combination with another event: upon the occurrence of any additional or subsequent events): (i) result in entitle any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee current or former employee director, officer, employee, independent contractor or group of employees or former employees consultant of the Company to severance pay or any Subsidiaryother payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any benefits otherwise payable under any Plansuch individual; (iii) result in limit or restrict the acceleration right of the time of payment Company to merge, amend, or vesting of terminate any such rights or benefitsBenefit Plan; or (iv) otherwise increase the amount payable under or result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect other material obligation pursuant to a current or former employee of the Company or any SubsidiaryBenefit Plan.
(g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) Section 3.22(a) of the Company Disclosure Schedule contains an accurate and complete list of each Company Employee Plan and each Employee Agreement (other than agreements between the Company or any of its ERISA Affiliates and any consultant or contractor relating to the performance of services for the Company or any of its ERISA Affiliates). Neither the Company nor any ERISA Affiliate has any plan or commitment to Page 41 – Agreement and Plan of Merger and Reorganization establish, adopt or enter into any new Company Employee Plan or Employee Agreement, to modify any Company Employee Plan or Employee Agreement (except to the extent required by law or to conform any such Company Employee Plan or Employee Agreement to the requirements of any applicable law).
(b) The Company has made available delivered to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the followingcopies of: (i) all employee benefit plans documents embodying each Company Employee Plan and each Employee Agreement including (as defined in Section 3(3without limitation) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, amendments thereto and all bonusrelated trust documents, stock optionadministrative service agreements, stock purchasegroup annuity contracts, restricted stockgroup insurance contracts, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, performance bonds and all employment contracts or agreements policies pertaining to which fiduciary liability insurance covering the fiduciaries for each Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, Employee Plan; (ii) the most recent annual report (Form 5500) filed with the Internal Revenue Service ("IRS") actuarial valuations, if any, prepared for the last three plan years, each Company Employee Plan; (iii) the three (3) most recently received IRS determination letter recent annual reports (or IRS opinion letter issued for a prototype document maintained for a PlanForm Series 5500 and all schedules and financial statements attached thereto), if any, relating to a required under ERISA or the Code in connection with each Company Employee Plan, ; (iv) if the Company Employee Plan is funded, the most recently prepared actuarial report or financial statement, if any, relating to a Plan, recent annual and subsequent periodic accounting of Company Employee Plan assets; (v) the most recent summary plan description for such Plan (or other descriptions together with the summary(ies) of such Plan provided to employees) and all material modifications thereto, if any, required under ERISA with respect to each Company Employee Plan; (vi) the name of each employeeall IRS determination, his or her positionopinion, length of service notification and current annual rates of salary, and advisory letters; (vii) all material communications to any Employee or Employees relating to any Company Employee Plan and any proposed Company Employee Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any liability to the names of Company; (viii) all correspondence to or from any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled governmental agency relating to receive compensation or benefits from the any Company or an ERISA Affiliate Employee Plan (other than pursuant routine correspondence that is not expected to result in liability to the PlansCompany); (ix) all standard COBRA forms and related notices (or such forms and notices as required under comparable law); (x) the three (3) most recent plan years discrimination tests for each Company Employee Plan (as applicable); and (xi) any applications filed under an IRS or DOL correction program, such as EPCRS (including any non-filed self-corrections), DFVCP or VFCP.
(bc) Each The Company and its ERISA Affiliates have performed in all material respects all obligations (including fiduciary duties) required to be performed by them under each Company Employee Plan, and each Company Employee Plan has been operated established and maintained in all material respects in accordance with its terms and the requirements of in material compliance with all applicable Lawslaws, statutes, orders, rules and regulations, including but not limited to ERISA and or the Code, and all reports, documents and notices required . Any Company Employee Plan intended to be filed with respect qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has been determined to be so qualified or exempt by the IRS. For each Plan have been timely filed.
(c) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code there has been no event, condition or Section 401(k) of the Code circumstance that has received a favorable determination letter from the IRS, adversely affected or is entitled likely to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect such qualified status. No “prohibited transaction,” within the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements meaning of Section 412 4975 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 406 of ERISA) have , and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan.
(d) Except as set forth in Section 4.21(d) . There are no actions, suits or claims pending, or, to the Knowledge of the Disclosure ScheduleCompany, neither threatened or reasonably anticipated (other than routine claims for benefits) against any Company Employee Plan or against the assets of any Company Employee Plan. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability to Parent, Company or any of its Page 42 – Agreement and Plan of Merger and Reorganization ERISA Affiliates (other than ordinary administration expenses). There are no audits, inquiries or proceedings pending or, to the Knowledge of the Company nor or any ERISA Affiliate sponsors Affiliates, threatened by the IRS or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISADOL, or has any obligation other Governmental Authority with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer planCompany Employee Plan. Neither the Company nor any ERISA Affiliate sponsors is subject to any penalty or has sponsored tax with respect to any Company Employee Plan that provides for any post-employment under Section 502(i), (l) and (m) of ERISA or post-retirement health or medical or life insurance benefits for retired, former or current employees Sections 4975 through 4980 of the Code. The Company and each ERISA Affiliate have timely made all contributions and other payments required by and due or accrued under the terms of each Company Employee Plan. To the Knowledge of the Company, all Employee records (including without limitation, compensation and service data) used by the Company Employee Plans are correct and complete.
(d) Neither the Company nor any ERISA AffiliateAffiliate has ever maintained, except as required by established, sponsored, participated in, or contributed to, any (i) Pension Plan which is subject to Title IV of ERISA or Section 4980B 412 of the Code Code, (ii) Multiemployer Plan or similar state law(iii) “multiple employer plan” as defined in ERISA or the Code. No Company Employee Plan provides health benefits that are not fully insured through an insurance contract and neither the Company nor any ERISA Affiliate maintains a “funded welfare plan” within the meaning of Section 419 of the Code.
(e) As of No Company Employee Plan or Employee Agreement provides, or reflects or represents any liability to provide post-termination or retiree welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable statute, and neither the date of this AgreementCompany nor any ERISA Affiliate has ever represented, there are no pending orpromised or contracted (whether in oral or written form) to any Employee (either individually or to Employees as a group) or any other Person that such Employee(s) or other Person would be provided with post-termination or retiree welfare benefits, except to the knowledge of the Company, threatened or anticipated claims extent required by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan statute.
(other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. f) Neither the Company nor any of its ERISA Affiliates has engaged Affiliate has, prior to the Effective Time and in any transactions with respect to any Plan that could subject the Company or material respect, violated any of its ERISA Affiliates to a material tax the health care continuation requirements of COBRA, USERRA, the requirements of FMLA, or penalty imposed by Section 4975, 4976 or 4980B the requirements of the Code or Sections 406, 409 or 502(i) Health Insurance Portability and Accountability Act of ERISA1996.
(fg) Except as set forth in Section 4.21(fNeither the Company nor any ERISA Affiliate is currently obligated to provide an Employee with any compensation or benefits pursuant to an agreement (e.g., an acquisition agreement) with a former employer of the Disclosure Schedule, neither the negotiation, such Employee.
(h) The execution and delivery of this Agreement nor and the consummation of the transactions contemplated hereby will, will not (either alone or in combination with another event: (iupon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan, Employee Agreement, trust or loan that will or may result in any payment (includingwhether of severance pay or otherwise), but not limited toacceleration, any retention bonusesforgiveness of indebtedness, parachute payments vesting, distribution, increase in benefits or noncompetition payments) becoming due obligation to fund benefits with respect to any employee Employee. No payment or former employee benefit which has been, will be or group of employees or former employees of may be made by the Company or its ERISA Affiliates with respect to any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment Employee will be, or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess could reasonably be expected to be, characterized as a “parachute payment" ,” within the meaning of Section 280G 280G(b)(2) of the Code with respect (or any corresponding or similar provision under state, local or foreign law) (“Section 280G Payments”). There is no contract, agreement, plan or arrangement to a current or former employee of which the Company or any SubsidiaryERISA Affiliates is a party or by which it is bound to compensate any Employee for excise taxes paid pursuant to Section 4999 of the Code (or any corresponding or similar provision under state, local or foreign law).
(gi) An entity The Company: (i) is an "ERISA Affiliate" in compliance in all material respects with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices and wages and hours, in each case, with respect to Employees; (ii) has withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to Employees; (iii) is not liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing; and (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no pending, threatened or reasonably anticipated claims or actions against the Company if it under any workers’ compensation policy or long-term disability policy. Neither the Company nor any ERISA Affiliate has direct or indirect liability with respect to any misclassification of any Person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer, except as would not result in material harm to the Company.
(j) No work stoppage or labor strike against the Company or any ERISA Affiliate is any corporationpending, trade threatened or business which, together with reasonably anticipated. To the Knowledge of the Company, is a member there are no activities or proceedings of a controlled group any labor union to organize any Employees. There are no actions, suits, claims, labor disputes or grievances pending, or, to the Knowledge of corporations the Company, threatened or a group reasonably anticipated relating to any labor, safety or discrimination matters involving any Employee, including, without limitation, charges of trades unfair labor practices or businesses under common control discrimination complaints, which, if adversely determined, would, individually or in the aggregate, result in any material liability to the Company. The Company has not engaged in any unfair labor practices within the meaning of Sections 414(b)the National Labor Relations Act. The Company is not presently, nor has it been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to Employees and no collective bargaining agreement is being negotiated with respect to Employees. The Company has not incurred any material liability or material obligation under the Worker Adjustment and Retraining Notification Act or any similar state or local law that remains unsatisfied.
(c)k) Neither the Company nor any ERISA Affiliate currently, nor has it ever had the obligation to, maintain, establish, sponsor, participate in, or contribute to any International Employee Plan.
(ml) or (oSection 3.22(l) of the CodeCompany Disclosure Schedule identifies each ‘nonqualified deferred compensation plan’ (as defined in Code section 409A(d)(1)) sponsored, maintained or contributed to by Company, any ERISA Affiliate or Employees. Each such plan has fully complied with Code section 409A, Notice 2005-1 and the Prop. Treas. Regs. at 70 Fed. Reg. 57930 (October 4, 2005) since January 1, 2005. No event has occurred that would be treated by Code section 409A(b) as a transfer of property under Code section 83.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) The Company has made available Disclosure Schedule lists, with respect to Parent copiesthe Company, any trade or business (whether or not incorporated) which are correct and complete in all material respectsis treated as a single employer with the Company (an "ERISA Affiliate") within the meaning of --------------- Section 414(b), and is providing a list in Section 4.21(a(c), (m) or (o) of the Disclosure Schedule, Code or any subsidiary of the following: Company (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (ii) all loans to ----- employees (except loans to a given individual from the individual's tax- qualified retirement plan) in excess of $25,000, loans to officers (except loans to a given individual from the individual's tax-qualified retirement plan), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, and all bonus, any stock option, stock purchase, restricted phantom stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurancestock appreciation right, supplemental retirement, severance, change in controlsabbatical, retention disability, employee relocation, cafeteria (pursuant to section 125 of the Code), life insurance or other benefit accident insurance plans, programs or arrangements, (iii) all bonus, deferred compensation or incentive plans, programs or arrangements, (iv) other fringe or employee benefit plans, programs or arrangements that apply to senior management of the Company and that do not generally apply to all employees, providing an aggregate amount of annual benefits in excess of $25,000, and (v) any current or former employment contracts or agreements executive compensation or severance agreements, written or otherwise, as to which current or contingent obligations of the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate of greater than $25,000 exist for the benefit of of, or relating to, any current or former employee, officer, consultant or director or consultant of the Company or any ERISA Affiliate (collectivelytogether, the "Company ------- Employee Plans") ), and all amendments thereto, (ii) the a copy of each such Company Employee Plan and each summary -------------- plan description and annual report (on the Form 5500) 5500 Series required to be filed with the Internal Revenue Service ("IRS") any government agency for each Company Employee Plan for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan), if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions of such Plan provided years has been delivered to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the PlansSplash.
(b) Each Plan (i) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person, except as required by Code Section 4980B or applicable state law conversion rights; (ii) there has been operated no "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, with respect to any Company Employee Plan; (iii) all material respects Company Employee Plans have been administered in accordance compliance with its terms and the requirements of prescribed by any and all applicable Lawsstatutes, rules and regulations (including ERISA and the Code, orders, or governmental rules and regulations currently in effect with respect thereto and including all reportsapplicable requirements for notification to participants or to the Department of Labor, documents Internal Revenue Service or Secretary of the Treasury), and notices the Company and each of its subsidiaries have performed all material obligations required to be filed with performed by them under, are not in any respect to in default under or violation of, and have no knowledge of any material default or violation by any other party to, any of the Company Employee Plans; (iv) each Company Employee Plan have been timely filed.
(c) Each Plan that is intended to be qualified qualify under Section 401(a) of the Code or and each trust intended to qualify under Section 401(k501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") --- as to such qualification, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending orand, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company nothing has no knowledge of any facts occurred which could give rise reasonably be expected to any action, suit, grievance, arbitration cause the loss of such qualification or other manner of litigation or claim with respect exemption; (v) all contributions required to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject be made by the Company or any of its ERISA Affiliates subsidiaries to any Company Employee Plan have been made on or before their due dates and a material tax or penalty imposed by Section 4975reasonable amount has been accrued for contributions to each Company Employee Plan for the current plan years; and (vi) no Company Employee Plan is covered by, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, and neither the negotiation, execution and delivery Company nor any subsidiary has incurred or expects to incur any liability under Title IV of this Agreement nor the consummation of the transactions contemplated hereby will, either alone ERISA or in combination with another event: (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) 412 of the Code.
(c) With respect to each Company Employee Plan, the Company has complied with the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the ----- proposed regulations thereunder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
Employee Benefit Plans and Compensation. (a) Part 2.19(a) of the Disclosure Schedule contains an accurate and complete list as of the date hereof of each Company Employee Plan and each Company Employee Agreement. The Company does not intend nor has it committed to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to the Purchaser in writing or as required by this Agreement).
(b) The Company has made available delivered to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the followingPurchaser: (i) correct and complete copies of all employee benefit plans (as defined in Section 3(3) documents setting forth the terms of the each Company Employee Retirement Income Security Act of 1974Plan and each Company Employee Agreement, as amended ("ERISA")), including all "specified fringe benefit plans" (as defined in Section 6039D of the Code, amendments thereto and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, related trust documents; (ii) the three most recent annual report reports (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a PlanSeries 5500 and all schedules and financial statements attached thereto), if any, relating required under ERISA or the Code in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to a Planthe minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets; (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions together with the summaries of such Plan provided to employees) and all material modifications thereto, (vi) the name of each employeeif any, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an required under ERISA Affiliate other than pursuant to the Plans.
(b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) all written materials provided to any Company Employee relating to any Company Employee Plan have been timely filed.
and any proposed Company Employee Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events that would result in any liability to the Company or any Company Affiliate; (cvii) Each all correspondence to or from any Governmental Body relating to any Company Employee Plan; (viii) all COBRA forms and related notices; (ix) all insurance policies in the possession of the Company or any Company Affiliate pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan; (x) all discrimination tests required under the Code for each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code for the three most recent plan years; and (xi) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(k401(a) of the Code.
(c) Each of the Company and Company Affiliates have performed all obligations required to be performed by them under each Company Employee Plan and are not in default or violation of, and neither the Company nor any of the Selling Stockholder have Knowledge of any default or violation by any other party to, the terms of any Company Employee Plan, and each Company Employee Plan has been established and maintained substantially in accordance with its terms and in substantial compliance with all applicable Legal Requirements, including ERISA and the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has received obtained a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination (or opinion letter or letters from the IRS that would reasonably be expected letter, if applicable) as to materially adversely affect the its qualified status of any such Plan or under the exempt status of any such trustCode. All contributions due to No “prohibited transaction,” within the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements meaning of Section 412 4975 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 Sections 406 and 407 of ERISA) have , and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there There are no pending claims or Proceedings pending, or, to the knowledge best of the Company’s Knowledge, threatened or reasonably anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and against any Company Employee Plan or against the assets of any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Closing in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to the Purchaser, the Company has or any Company Affiliate (other than ordinary administration expenses). There are no knowledge audits, inquiries or Proceedings pending or, to the best of the Company’s Knowledge, threatened by the IRS, DOL, or any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim Governmental Body with respect to any Company Employee Plan. None of the PlansCompanies nor any Company Affiliate has ever incurred any penalty or tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. Each of the Companies and Company Affiliates have made all contributions and other payments required by and due under the terms of each Company Employee Plan.
(d) Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in, or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; or (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA. Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in or contributed to, any Company Pension Plan in which stock of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to Company Affiliate is or was held as a material tax or penalty imposed by Section 4975, 4976 or 4980B plan asset. The fair market value of the Code assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or Sections 406the book reserve established for any Foreign Plan, 409 together with any accrued contributions, is sufficient to procure or 502(iprovide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no transaction contemplated by this Agreement shall cause any such assets or insurance obligations to be less than such benefit obligations.
(e) No Company Employee Plan provides (except at no cost to the Company or any Company Affiliate), or reflects or represents any liability of ERISAthe Company or any Company Affiliate to provide, retiree life insurance, retiree health benefits or other retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to the Company or any Company Affiliate, neither the Company nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Employee (either individually or to Company Employees as a group) or any other Person that such Company Employee(s) or other person would be provided with retiree life insurance, retiree health benefit or other retiree employee welfare benefits, except to the extent required by applicable Legal Requirements.
(f) Except as set forth in Section 4.21(fPart 2.19(f) of the Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby willwill (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in combination connection with another any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee.
(g) Except as set forth in Part 2.19(g) of the Disclosure Schedule, each of the Company and Company Affiliates: (i) result are, and at all times have been, in substantial compliance with all applicable Legal Requirements respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to Company Employees, including the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of HIPAA and any similar provisions of state law; (ii) have withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Employees; (iii) are not liable for any arrears of wages or any taxes or any penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) are not liable for any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee trust or former employee other fund governed by or group maintained by or on behalf of employees any Governmental Body with respect to unemployment compensation benefits, social security or former employees other benefits or obligations for Company Employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no pending or, to the best of the Company’s Knowledge, threatened or reasonably anticipated claims or Proceedings against the Company or any Company Affiliate under any worker’s compensation policy or long-term disability policy.
(h) To the best of the Company’s Knowledge, no shareholder nor any Company Employee is obligated under any Contract or subject to any judgment, decree, or order of any court or other Governmental Body that would interfere with such Person’s efforts to promote the interests of the Company or that would interfere with the business of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in Company Affiliate. Neither the acceleration execution nor the delivery of this Agreement, nor the carrying on of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee business of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" Company Affiliate as presently conducted nor any activity of such shareholder or Company Employees in connection with the carrying on of the business of the Company if it is or any corporationCompany Affiliate as presently conducted will, trade or business which, together with to the best of the Company’s Knowledge, is conflict with, result in a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) breach of the Codeterms, conditions or provisions of, or constitute a default under, any Contract under which any of such shareholders or Company Employees is now bound.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the following: (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, ) and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "“Company Plans"”) and all amendments thereto, (ii) the annual report (Form 5500) filed with the Internal Revenue Service ("“IRS"”) for the last three plan years, if any, relating to a Company Plan, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan)letter, if any, relating to a Company Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Plan, (v) the most recent summary plan description for such Company Plan (or other descriptions of such Company Plan provided to employees) and all modifications thereto, and (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii. Section 4.20(a) of the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Disclosure Schedule lists each Company or an ERISA Affiliate other than pursuant to the PlansPlan.
(b) Each Company Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Company Plan have been timely filed. All contributions, premiums or other payments that are due have been paid on a timely basis with respect to each Company Plan.
(c) Each Company Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion letter issued by the IRSIRS on the prototype or volume submitter document upon which the Company Plan is based, and to the knowledge of the Company Company, no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Company Plan or the exempt status of any such its accompanying trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsors sponsors, or has sponsored or has any liability with respect to any Company Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association ERISA or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Company Plan that provides for nor is the Company a party to any agreement that could require the Company to provide any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by claims, Actions, or on behalf of investigations with respect to any Company Plan, by any employee or beneficiary covered under any such Company Plan, or otherwise involving any such Company Plan (other than routine undisputed claims for benefits), and . To the Company has no knowledge of any facts which could give rise to any actionthe Company, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Company Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither Neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with another event: (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "“excess parachute payment" ” within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary.
(g) Each Company Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code), has been maintained in compliance in all material respects with the plan document and the requirements of Section 409A of the Code and applicable guidance issued thereunder, no amounts under any such plan, agreement or arrangement is or has been subject to the interest and additional tax set forth under Section 409A(a)(1)(B) of the Code and the Company has no obligation to gross-up or indemnify any service provider with respect to any such tax.
(h) An entity is an "“ERISA Affiliate" ” of the Company if it is any corporationwould have, trade or business whichwithin the past six years, together been considered a single employer with the Company, is a member of a controlled group of corporations or a group of trades or businesses Company under common control within the meaning of Code Sections 414(b), (c), (m) or (o) of the Code).
Appears in 1 contract
Sources: Merger Agreement (Physicians Formula Holdings, Inc.)
Employee Benefit Plans and Compensation. (a) The Company has made available Disclosure Schedule lists, with respect to Parent copiesthe Company, any trade or business (whether or not incorporated) which are correct and complete in all material respectsis treated as a single employer with the Company (an "ERISA Affiliate") within the meaning of --------------- Section 414(b), and is providing a list in Section 4.21(a(c), (m) or (o) of the Disclosure Schedule, Code or any subsidiary of the following: Company (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (ii) all loans to employees (except loans to a given individual from the individual's tax-qualified retirement plan) in excess of $25,000, loans to officers (except loans to a given individual from the individual's tax-qualified retirement plan), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, and all bonus, any stock option, stock purchase, restricted phantom stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurancestock appreciation right, supplemental retirement, severance, change in controlsabbatical, retention disability, employee relocation, cafeteria (pursuant to section 125 of the Code), life insurance or other benefit accident insurance plans, programs or arrangements, (iii) all bonus, deferred compensation or incentive plans, programs or arrangements, (iv) other fringe or employee benefit plans, programs or arrangements that apply to senior management of the Company and that do not generally apply to all employees, providing an aggregate amount of annual benefits in excess of $25,000, and (v) any current or former employment contracts or agreements executive compensation or severance agreements, written or otherwise, as to which current or contingent obligations of the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate of greater than $25,000 exist for the benefit of of, or relating to, any current or former employee, officer, consultant or director or consultant of the Company or any ERISA Affiliate (collectivelytogether, the "Company ------- Employee Plans") ), and all amendments thereto, (ii) the a copy of each such Company Employee Plan and each summary -------------- plan description and annual report (on the Form 5500) 5500 Series required to be filed with the Internal Revenue Service ("IRS") any government agency for each Company Employee Plan for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan), if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions of such Plan provided years has been delivered to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the PlansSplash.
(b) Each Plan (i) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person, except as required by Code Section 4980B or applicable state law conversion rights; (ii) there has been operated no "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, with respect to any Company Employee Plan; (iii) all material respects Company Employee Plans have been administered in accordance compliance with its terms and the requirements of prescribed by any and all applicable Lawsstatutes, rules and regulations (including ERISA and the Code, orders, or governmental rules and regulations currently in effect with respect thereto and including all reportsapplicable requirements for notification to participants or to the Department of Labor, documents Internal Revenue Service or Secretary of the Treasury), and notices the Company and each of its subsidiaries have performed all obligations required to be filed with performed by them under, are not in any respect to in default under or violation of, and have no knowledge of any material default or violation by any other party to, any of the Company Employee Plans; (iv) each Company Employee Plan have been timely filed.
(c) Each Plan that is intended to be qualified qualify under Section 401(a) of the Code or and each trust intended to qualify under Section 401(k501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") as to such qualification, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or--- and, to the best knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company nothing has no knowledge of any facts occurred which could give rise reasonably be expected to any action, suit, grievance, arbitration cause the loss of such qualification or other manner of litigation or claim with respect exemption; (v) all contributions required to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject be made by the Company or any of its ERISA Affiliates subsidiaries to any Company Employee Plan have been made on or before their due dates and a material tax or penalty imposed by Section 4975reasonable amount has been accrued for contributions to each Company Employee Plan for the current plan years; and (vi) no Company Employee Plan is covered by, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, and neither the negotiation, execution and delivery Company nor any subsidiary has incurred or expects to incur any liability under Title IV of this Agreement nor the consummation of the transactions contemplated hereby will, either alone ERISA or in combination with another event: (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) 412 of the Code.
(c) With respect to each Company Employee Plan, the Company has complied with the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the ----- proposed regulations thereunder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
Employee Benefit Plans and Compensation. (a) Section 2.21(a) of the Disclosure Schedule contains an accurate and complete list of each Company Employee Plan and, to the Knowledge of the Company, each Employee Agreement. There are no Employee Agreements that are not terminable at will without severance or financial obligation. The Company has no plan or commitment to establish any new Company Employee Plan or Employee Agreement, to modify any Company Employee Plan or Employee Agreement (except to the extent required by law or to conform any such Company Employee Plan or Employee Agreement to the requirements of any applicable law, in each case as previously disclosed to Parent in writing, or as required by this Agreement), or to enter into any Company Employee Plan or Employee Agreement. Schedule 2.21(a) of the Disclosure Schedule also sets forth a table setting forth the name and salary of each employee of the Company.
(b) The Company has made available delivered to Parent copies, which are (i) correct and complete in copies of all material respectsdocuments embodying each Company Employee Plan and each Employee Agreement including, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the following: (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))without limitation, all "specified fringe benefit plans" (as defined in Section 6039D of the Code, amendments thereto and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments theretorelated trust documents, (ii) the three (3) most recent annual report reports (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a PlanSeries 5500 and 990 and all schedules and financial statements attached thereto), if any, relating to a required under ERISA or the Code in connection with each Company Employee Plan, (iviii) if the Company Employee Plan is funded, the most recently prepared actuarial report or financial statement, if any, relating to a Planrecent annual and periodic accounting of Company Employee Plan assets, (viv) the most recent summary plan description for such Plan (or other descriptions together with the summary(ies) of such Plan provided to employees) and all material modifications thereto, if any, required under ERISA with respect to each Company Employee Plan, (v) all material written agreements and contracts relating to each Company Employee Plan, including, without limitation, administrative service agreements and group insurance contracts, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the Plans.
(b) Each Plan has been operated in all communications material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Plan have been timely filed.
(c) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors Employee or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect Employees relating to any such plan or arrangement Company Employee Plan and does not reasonably expect to incur any withdrawal liability proposed Company Employee Plans, in each case, relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors amendments, terminations, establishments, increases or has sponsored any Plan that provides for any post-employment decreases in benefits, acceleration of payments or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration vesting schedules or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with another event: (i) events which would result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due liability to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) of the Code.,
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cirrus Logic Inc)
Employee Benefit Plans and Compensation. (a) Part 2.21(a) of the Disclosure Schedule contains an accurate and complete list as of the date hereof of each Company Employee Plan and each Company Employee Agreement. Since January 1, 2012, the Company does not intend and has not committed to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement).
(b) The Company has made available delivered to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the followingParent: (i) correct and complete copies of all employee benefit plans (as defined in Section 3(3) documents setting forth the terms of the each Company Employee Retirement Income Security Act of 1974Plan and each Company Employee Agreement, as amended ("ERISA")), including all "specified fringe benefit plans" (as defined in Section 6039D of the Code, amendments thereto and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, related trust documents; (ii) the three (3) most recent annual report reports (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a PlanSeries 5500 and all schedules and financial statements attached thereto), if any, relating required under ERISA or the Code in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to a Planthe minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets; (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions together with the summaries of such Plan provided to employees) and all modifications thereto, (vi) the name of each employeeif any, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an required under ERISA Affiliate other than pursuant to the Plans.
(b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Company Employee Plan; (v) all Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) all materials provided to any Company Employee relating to any Company Employee Plan have been timely filed.
and Company Employee Agreement and any proposed Company Employee Plans or Company Employee Agreement, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events that would result in any liability to the Company or any Company Affiliate; (cvii) Each all correspondence to or from any Governmental Body relating to any Company Employee Plan that is or Company Employee Agreement; (viii) all COBRA forms and related notices; (ix) all insurance policies in the possession of the Company or any Company Affiliate pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan; (x) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the three (3) most recent plan years; (xi) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(k401(a) of the Code; and (xii) copies of all reports or analyses prepared internally or by third-party firms providing valuations of the Company Common Stock for purposes of complying with Sections 409A or 422 of the Code.
(c) The Company and Company Affiliates have performed all material obligations required to be performed by them under each Company Employee Plan and Company Employee Agreement and are not in default or violation of, and the Company has no Knowledge of any default or violation by any other party to, the terms of any Company Employee Plan and Company Employee Agreement, and each Company Employee Plan and Company Employee Agreement has been established and maintained in substantial compliance with its terms and in substantial compliance with all applicable Legal Requirements, including ERISA and the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has received obtained a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination (or opinion letter or letters from the IRS that would reasonably be expected letter, if applicable) as to materially adversely affect the its qualified status of any such Plan or under the exempt status of any such trustCode. All contributions due to No “prohibited transaction,” within the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements meaning of Section 412 4975 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 Sections 406 and 407 of ERISA) have , and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there There are no pending claims or Proceedings pending, or, to the knowledge of the Company’s Knowledge, threatened or reasonably anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and against any Company Employee Plan or Company Employee Agreement or against the assets of any Company Employee Plan or Company Employee Agreement . Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Closing in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, the Company has or any Company Affiliate (other than ordinary administration expenses). There are no knowledge of audits, inquiries or Proceedings pending or, to the Company’s Knowledge, threatened by the IRS, DOL or any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim Governmental Body with respect to the Plansany Company Employee Plan or Company Employee Agreement. Neither the Company nor any of its ERISA Affiliates Company Affiliate has engaged in ever incurred any transactions penalty or Tax with respect to any Company Employee Plan that could under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. The Company and each Company Affiliate have made all contributions and other payments required by and due under the terms of each Company Employee Plan and Company Employee Agreement.
(d) Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; or (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA. Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in or contributed to, any Company Pension Plan in which shares of the Company or any of its ERISA Affiliates Company Affiliate is or was held as a plan asset.
(e) No Company Employee Plan provides (except at no cost to a material tax the Company or penalty imposed by Section 4975any Company Affiliate), 4976 or 4980B reflects or represents any liability of the Code Company or Sections 406any Company Affiliate to provide, 409 retiree life insurance, retiree health benefits or 502(iother retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to the Company or any Company Affiliate, none of the Company or any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) of ERISAto any Company Employee (either individually or to Company Employees as a group) or any other Person that such Company Employee(s) or other person would be provided with retiree life insurance, retiree health benefit or other retiree employee welfare benefits, except to the extent required by applicable Legal Requirements.
(f) Except as set forth in Section 4.21(fPart 2.21(f) of the Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby willTransactions will (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in combination connection with another any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee.
(g) Except as set forth in Part 2.21(g) of the Disclosure Schedule, the Company and each of the Company Affiliates: (i) result are, and at all times have been, in substantial compliance with all applicable Legal Requirements respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to Company Employees, including the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of HIPAA and any similar provisions of state law; (ii) have withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Employees; (iii) are not liable for any arrears of wages or any Taxes or any penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) are not liable for any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee trust or former employee other fund governed by or group maintained by or on behalf of employees any Governmental Body with respect to unemployment compensation benefits, social security or former employees other benefits or obligations for Company Employees (other than routine payments to be made in the Ordinary Course of Business and consistent with past practice). There are no pending or, to the Company’s Knowledge, threatened or reasonably anticipated claims or Proceedings against the Company or any Company Affiliate under any worker’s compensation policy or long-term disability policy.
(h) To the Company’s Knowledge, no member or any Company Employee is obligated under any Contract or subject to any judgment, decree or order of any court or other Governmental Body that would interfere with such Person’s efforts to promote the interests of the Company or that would interfere with the Business. Neither the execution nor the delivery of this Agreement, nor the carrying on of the business of the Company or any Subsidiary; (ii) increase Company Affiliate as presently conducted nor any benefits otherwise payable under any Plan; (iii) result activity of such members or Company Employees in connection with the acceleration carrying on of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee business of the Company or any SubsidiaryCompany Affiliate as presently conducted will, to Company’s Knowledge, conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default under, any Contract under which any of such members or Company Employees are now bound.
(gi) An entity If any Company Employee Plan or Company Employee Agreement is an "ERISA Affiliate" a “non-qualified deferred compensation plan” as defined in section 409A of the Code, (i) such Company if it is Employee Plan Plan or Company Employee Agreement has been administered, maintained and operated in all material respects according to the requirements of section 409A of the Code and the rules and regulations promulgated thereunder or, with respect to any corporation, trade or business which, together material failure to comply with the Companyrequirements of section 409A of the Code, is eligible to be corrected in accordance with the terms of applicable IRS correction policies without the payment of any Taxes or penalties under section 409A, and (ii) the Company and its ERISA Affiliates have not been required to withhold or pay any Taxes as a member result of a controlled group failure to comply with section 409A of corporations the Code. The Company and its ERISA Affiliates do not have any obligation to make a “gross-up” or a group similar payment in respect of trades or businesses any Taxes that may become payable under common control section 409A of the Code. The Company Options and other stock rights within the meaning of Sections 414(b), (c), (m) or (o) section 409A of the CodeCode have been granted with an exercise price or strike price that is no less than the fair market value of the underlying stock on the date of grant of such Company Options or stock rights and otherwise contain no features for the deferral of compensation within the meaning of section 409A of the Code other than the deferral of the recognition of income until the later of the exercise or disposition of such option or stock right.
(j) The representations and warranties in this Section 2.21 and in Section 2.20 and Section 2.32 are the sole and exclusive representations and warranties of the Company concerning Company Employees, Company Employee Agreement and Company Employee Plan matters.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) Section 2.18(a) of the Company Disclosure Schedule contains a complete and accurate list of each employment, consulting, compensation, incentive or deferred compensation, severance, relocation, retention, transaction, change in control, termination, retirement, pension, supplemental retirement, deferred compensation, excess benefit, profit-sharing, bonus, incentive, performance award, stock option, restricted stock, deferred stock, phantom stock or other equity or equity- linked, savings, life, vacation, paid-time-off, cafeteria, insurance, flex spending, tuition, medical, health, welfare, disability, death, fringe benefit or other employee compensation or benefit plan, program, policy, practice, commitment, agreement, arrangement or Contract, including, in each case, each “employee benefit plan” within the meaning of Section 3(3) of the ERISA (whether or not subject to ERISA) which is or has been maintained, contributed to, participated in, sponsored by or required to be contributed to by the Company or with respect to which the Company has or would reasonably be expected to have any Liability or obligation, whether actual or contingent (collectively, the “Company Employee Plans”), provided that with respect to any Company Employee Plans that are employment agreements, offer letters, consulting agreement or similar agreements, that are terminable without penalty and without severance or change in control benefits, only forms thereof need be listed on Section 2.18(a) of the Company Disclosure Schedule. (b) The Company has made available to Parent copiesAcquiror true, which are correct and complete in all material respectscopies, and is providing a list in Section 4.21(a) of the Disclosure Scheduleas applicable, of the following: (i) each Company Employee Plan including all employee benefit plans amendments thereto and all related trust documents (as defined in Section 3(3) and descriptions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit material terms of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments theretosuch plan that is not in writing), (ii) the three most recent annual report reports (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a PlanSeries 5500 and all schedules and financial statements attached thereto), if any, relating required to a be filed in connection with each Company Employee Plan, (iviii) if the Company Employee Plan is funded, the most recently prepared actuarial report or financial statement, if any, relating to a Planrecent annual and periodic accounting of such Company Employee Plan assets, (viv) the most recent summary plan description for such Plan (or other descriptions together with the summary(ies) of such Plan provided to employees) and all material modifications thereto, if any, (v) all material written agreements and contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts, (vi) all correspondence to or from any Governmental Entity relating to any Company Employee Plan other than routine correspondence in the name normal course of each employeeoperations of such Company Employee Plan, his or her position, length of service and current annual rates of salary, and (vii) all forms of COBRA notices, (viii) policies pertaining to fiduciary liability insurance covering the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the fiduciaries for each Company or an ERISA Affiliate other than pursuant to the Plans.
(b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Plan have been timely filed.
(c) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Employee Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such (ix) all discrimination tests for each Company Employee Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with another event: (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b)three most recent plan years, (cx), (m) or (o) of the Code.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a3.14(a) of the Disclosure Schedule, Schedule contains a true and complete list of the following: (i) all each "employee pension benefit plans plan" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe employee welfare benefit plansplan" (as defined in Section 6039D 3(1) of ERISA), and any plan, agreement or program providing for pensions, retirement income, deferred compensation, profit-sharing, bonuses, stock options, stock appreciation or other forms of incentive compensation that (i) is entered into, maintained or contributed to, as the case may be, by Servicesoft or any of its Subsidiaries and (ii) covers any employee or former employee of Servicesoft or any of its Subsidiaries (collectively "BENEFIT ARRANGEMENTS"). Each Benefit Arrangement (and each related trust insurance contract or fund) has been maintained and administered in material compliance with its terms and with the requirements prescribed by ERISA, the Code and all other statutes, laws, ordinances and regulations which are applicable thereto. The requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), have been met with respect to each Benefit Arrangement which is a group health plan under Section 5000(b)(1) of the Code. All required reports and descriptions (including Form 5500 Annual Reports, summary annual reports, PBGC-l's and summary plan descriptions) have been timely filed and distributed appropriately with respect to each such Benefit Arrangement. No Benefit Arrangement has unfunded liabilities that, as of the Closing, will not be offset by insurance or fully accrued or reserved against in the Servicesoft Financial Statements. Except to the extent required under COBRA, neither Servicesoft nor any of its Subsidiaries maintains, contributes to, or has any liability or obligation to contribute to any funded or unfunded medical, health or life insurance plan or similar arrangement for present or future retirees, their spouses or dependents or present or future terminated employees, their spouses or dependents. No Benefit Arrangement has applied for or received a waiver of the minimum funding standards imposed by Section 412 of the Code, and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate no Benefit Arrangement has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the an "Plans") and all amendments thereto, (ii) the annual report (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan), if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions of such Plan provided to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the Plans.
(b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Plan have been timely filed.
(c) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum accumulated funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with another event: (i) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute paymentdeficiency" within the meaning of Section 280G 412(a) of the Code with respect to a current or former employee as of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" of the Company if it is any corporation, trade or business which, together with the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) of the Code.most recent plan year. Each Benefit
Appears in 1 contract
Sources: Series J Convertible Preferred Stock Purchase Agreement (Servicesoft Technologies Inc)
Employee Benefit Plans and Compensation. (a) Schedule 2.19(a) of the Disclosure Schedule contains an accurate and complete list as of the date hereof of each Company Employee Plan and each Company Employee Agreement. The Company does not intend nor has it committed to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to the Purchaser in writing or as required by this Agreement).
(b) The Company has made available delivered to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the followingPurchaser: (i) correct and complete copies of all employee benefit plans (as defined in Section 3(3) documents setting forth the terms of the each Company Employee Retirement Income Security Act of 1974Plan and each Company Employee Agreement, as amended ("ERISA")), including all "specified fringe benefit plans" (as defined in Section 6039D of the Code, amendments thereto and all bonusrelated trust documents, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, if any; (ii) the three most recent annual report reports (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, (iii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a PlanSeries 5500 and all schedules and financial statements attached thereto), if any, relating required under ERISA or the Code in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to a Planthe minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets; (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan (or other descriptions together with the summaries of such Plan provided to employees) and all material modifications thereto, (vi) the name of each employeeif any, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an required under ERISA Affiliate other than pursuant to the Plans.
(b) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and all reports, documents and notices required to be filed with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts, if any; (vi) all written materials provided to any Company Employee relating to any Company Employee Plan have been timely filed.
and any proposed Company Employee Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events that would result in any liability to the Company or any Company Affiliate; (cvii) Each all correspondence to or from any Governmental Body relating to any Company Employee Plan; (viii) all COBRA forms and related notices; (ix) all insurance policies in the possession of the Company or any Company Affiliate pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan; (x) all discrimination tests required under the Code for each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code for the three most recent plan years; and (xi) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(k401(a) of the Code, if any.
(c) Each of the Company and Company Affiliates have performed all obligations required to be performed by them under each Company Employee Plan and are not in default or violation of, and neither the Company nor any of the Selling Stockholders have Knowledge of any default or violation by any other party to, the terms of any Company Employee Plan, and each Company Employee Plan has been established and maintained substantially in accordance with its terms and in substantial compliance with all applicable Legal Requirements, including ERISA and the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has received obtained a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination (or opinion letter or letters from the IRS that would reasonably be expected letter, if applicable) as to materially adversely affect the its qualified status of any such Plan or under the exempt status of any such trustCode. All contributions due to No "prohibited transaction," within the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements meaning of Section 412 4975 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 Sections 406 and 407 of ERISA) have , and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there There are no pending claims or Proceedings pending, or, to the knowledge Knowledge of the CompanyCompany and the Selling Stockholders, threatened or reasonably anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), against any Company Employee Plan or against the assets of any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Closing in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to the Purchaser, the Company or any Company Affiliate (other than ordinary administration expenses). There are no audits, inquiries or Proceedings pending or, to the Knowledge of the Company and the Company has no knowledge of Selling Stockholders, threatened by the IRS, DOL, or any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim Governmental Body with respect to the Plansany Company Employee Plan. Neither the Company nor any of its ERISA Affiliates Company Affiliate has engaged in ever incurred any transactions penalty or tax with respect to any Company Employee Plan that could under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. Each of the Company and Company Affiliates have made all contributions and other payments required by and due under the terms of each Company Employee Plan.
(d) Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in, or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; or (ii) "multiemployer plan" within the meaning of Section (3)(37) of ERISA. Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in or contributed to, any Company Pension Plan in which stock of the Company or any of its ERISA Affiliates to Company Affiliate is or was held as a material tax or penalty imposed by Section 4975, 4976 or 4980B plan asset. The fair market value of the Code assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or Sections 406the book reserve established for any Foreign Plan, 409 together with any accrued contributions, is sufficient to procure or 502(iprovide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no transaction contemplated by this Agreement shall cause any such assets or insurance obligations to be less than such benefit obligations.
(e) No Company Employee Plan provides (except at no cost to the Company or any Company Affiliate), or reflects or represents any liability of ERISAthe Company or any Company Affiliate to provide, retiree life insurance, retiree health benefits or other retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to the Company or any Company Affiliate, neither the Company nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Employee (either individually or to Company Employees as a group) or any other Person that such Company Employee(s) or other person would be provided with retiree life insurance, retiree health benefit or other retiree employee welfare benefits, except to the extent required by applicable Legal Requirements.
(f) Except as set forth in Section 4.21(fSchedule 2.19(f) of the Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby willwill (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in combination connection with another any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee.
(g) Except as set forth in Schedule 2.19(g) of the Disclosure Schedule, each of the Company and Company Affiliates: (i) result are, and at all times have been, in substantial compliance with all applicable Legal Requirements respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to Company Employees, including the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of HIPAA and any similar provisions of state law; (ii) have withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Employees; (iii) are not liable for any arrears of wages or any taxes or any penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) are not liable for any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee trust or former employee other fund governed by or group maintained by or on behalf of employees any Governmental Body with respect to unemployment compensation benefits, social security or former employees other benefits or obligations for Company Employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no pending or, to the Knowledge of the Company and the Selling Stockholders, threatened or reasonably anticipated claims or Proceedings against the Company or any Company Affiliate under any worker's compensation policy or long-term disability policy.
(h) To the Knowledge of the Company and the Selling Stockholders, no shareholder nor any Company Employee is obligated under any Contract or subject to any judgment, decree, or order of any court or other Governmental Body that would interfere with such Person's efforts to promote the interests of the Company or that would interfere with the business of the Company or any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in Company Affiliate. Neither the acceleration execution nor the delivery of this Agreement, nor the carrying on of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a current or former employee business of the Company or any Subsidiary.
(g) An entity is an "ERISA Affiliate" Company Affiliate as presently conducted nor any activity of such shareholder or Company Employees in connection with the carrying on of the business of the Company if it is or any corporationCompany Affiliate as presently conducted will, trade or business which, together with to the Company, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b), (c), (m) or (o) Knowledge of the CodeCompany and the Selling Stockholders, conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default under, any Contract under which any of such shareholders or Company Employees is now bound.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edgewater Technology Inc/De/)
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copiesAll employee compensation, which are correct and complete in incentive, fringe or benefit plans, programs, policies, or other arrangements including, without limitation, all material respects, and is providing a list in Section 4.21(a) of the Disclosure Schedule, of the following: (i) all "employee benefit plans (as defined in plans" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))) covering any active or former employee, all "specified fringe benefit plans" (as defined in Section 6039D director or consultant of the Code, and all bonus, stock option, stock purchase, restricted stock, incentive, equity Company who has worked or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to provided services for the Company (an "Employee," which shall for this purpose mean an Employee of the Company or any ERISA Affiliate (as defined below)), any subsidiary of the Company or any trade or business (whether or not incorporated) which is a partymember of a controlled group or which is under common control with the Company within the meaning of Section 414 of the Code (an "Affiliate"), with respect to which the Company or any ERISA Affiliate has any obligation liability, are listed in Section 2.20(a) of the Company Disclosure Schedule (the "Plans"). The Company has provided to SCM: (i) correct and complete copies of all documents embodying each Plan, International Employee Plan (as defined below), and each management, employment, severance, consulting, relocation, repatriation, expatriation, visas, work permit, or which are maintainedother agreement, contributed to contract or sponsored by understanding between the Company or any ERISA Affiliate for the benefit of and any current or former employeeEmployee since January 1, officer1994 ("Employment Agreement"), director or consultant of the Company or any ERISA Affiliate including (collectivelywithout limitation) all amendments to each such Plan and/or Employment Agreement, the "Plans") and all amendments theretomaterial written agreements and contracts relating to each such Plan and/or International Plan (including, but not limited to, administrative service agreements, group annuity contracts and group insurance contracts, trust agreements, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan); (ii) the three (3) most recent annual report reports (Form 5500Series 5500 and all schedules and financial statements attached thereto), if any, filed under ERISA or the Code in connection with each Plan; (iii) filed the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, distributed pursuant to ERISA with respect to each Plan; (iv) all Internal Revenue Service ("IRS") determination, opinion, notification and/or advisory letters; (v) all correspondence during the preceding three (3) years to or from any governmental agency relating to any Plan; (vi) all forms and notices pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"); (vii) discrimination tests performed for each Plan with respect to the last most recent three (3) plan years, ; (iiiviii) the most recently received IRS determination letter (or IRS opinion letter issued for a prototype document maintained for a Plan)recent annual actuarial valuations, if any, relating to a prepared for each Plan; (ix) if the Plan is funded, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such annual and periodic accounting of Plan assets; (x) all communications to Employees relating to any Plan and relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules, or other descriptions of such Plan provided events which would result in any material liability to employees) and all modifications thereto, (vi) the name of each employee, his or her position, length of service and current annual rates of salary, and (vii) the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the Plansany Affiliate; and (xi) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with any Plan.
(b) Each The Company has performed in all material respects all obligations required to be performed by it under, is not in any material respect in default or violation of, and has no knowledge of any material default or violation by any other party to each Plan, and each Plan has been operated maintained and administered in all material respects in accordance compliance with its terms and with the requirements of prescribed by any and all applicable Lawsstatutes, orders, rules and regulations, including but not limited to ERISA and the Code, and all reportswhich are applicable to each such Plan. No suit, documents and notices action or other litigation (excluding claims for benefits incurred in the ordinary course of Plan activities) is pending, or to the knowledge of the Company is threatened, against or with respect to any such Plan. There are no audits, inquiries or proceedings pending or, to the knowledge of the Company, threatened by the IRS or Department of Labor (the "DOL") with respect to any Plan. All contributions or payments required to be filed with respect made as of the date hereof to each any Plan have been timely filed.
(c) Each made. Any Plan that is intended to be qualified under Section 401(a) of the Code or and each trust intended to qualify under Section 401(k501(a) of the Code Code: (i) has received either obtained a favorable determination letter determination, notification, advisory and/or opinion letter, as applicable, as to its tax-qualified status from the IRSIRS or still has a remaining period of time under applicable Treasury Regulations or IRS pronouncements in which to apply for such letter and to make any amendments necessary to obtain a favorable determination, and (ii) incorporates or has been amended to incorporate all provisions required to comply with the Tax Reform Act of 1986. The Company does not have any plan or commitment to establish any new Plan, to modify any Plan (except to the extent required by law or to conform any such Plan to the requirements of any applicable law, in each case as previously disclosed to SCM in writing, or is entitled as required by this Agreement), or to rely on a favorable opinion issued by enter into any new Plan. By their respective terms, each Plan (other than any stock option plan) can be amended, terminated or otherwise discontinued after the IRSEffective Time without material liability to SCM, the Company or any of its Affiliates (other than administration expenses and premiums and expenses for benefits accrued but not yet paid).
(c) Neither the Company nor any of its Affiliates has at any time ever maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code. At no time after January 1, 1994, and to the Company's knowledge prior to January 1, 1994, has the Company or any of its Affiliates contributed to or been obligated to contribute to any "multiemployer plan," as such term is defined in Section 3(37) of ERISA or to any plan described in Section 413 of the Company no fact or event has occurred since Code. No "prohibited transaction," within the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements meaning of Section 412 4975 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 Sections 406 and 407 of ERISA) have , and not otherwise exempt under Section 4975 of the Code, and Section 408 of ERISA, has occurred with respect to any PlanPlan which could subject the Company to material liabilities.
(d) Except as set forth in Section 4.21(d) of After January 1, 1994, and to the Disclosure ScheduleCompany's knowledge prior to January 1, 1994, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject of its Affiliates has, prior to the Effective Time and in any material respect, violated any of the health continuation requirements of COBRA, the requirements of the Family Medical Leave Act of 1993, as amended, the requirements of the Women's Health and Cancer Rights Act, as amended, the requirements of the Newborns' and Mothers' Health Protection Act of 1996, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, or any similar provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) state law applicable to Employees of the Code, a voluntary employee beneficiary association Company or is a multiemployer plan within any of its Affiliates. None of the meaning of Section 3(37) of ERISA, Plans promises or has any obligation with respect provides retiree medical benefits to any person except as required by applicable law, and after January 1, 1994, and to the Company's knowledge prior to January 1, 1994, neither the Company nor any of its Affiliates has contracted or to its knowledge, represented or promised (whether in oral or written form) to provide such plan retiree benefits to any Employee or arrangement and does not reasonably expect dependent thereof, except to incur any withdrawal liability relating to a multiemployer plan. the extent required by statute.
(e) Neither the Company nor any ERISA Affiliate sponsors of its Affiliates is bound by or has sponsored subject to (and none of its respective assets or properties is bound by or subject to) any Plan that provides for arrangement with any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees labor union. No Employee of the Company or any ERISA Affiliateof its Affiliates is represented by any labor union or covered by any collective bargaining agreement and, except as required by Section 4980B to the knowledge of the Code or similar state law.
(e) As of the date of this AgreementCompany, there are no campaign to establish such representation is in progress. There is no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise labor dispute involving any such Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates and any group of its employees nor has the Company or any of its Affiliates experienced any labor interruptions over the past three (3) years, and the Company and its Affiliates consider their relationships with their Employees to a be good. The Company and its Affiliates are in compliance in all material tax or penalty imposed by Section 4975respects with all applicable material foreign, 4976 or 4980B federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of the Code or Sections 406, 409 or 502(i) of ERISAemployment and wages and hours.
(f) Except as set forth disclosed in Section 4.21(fSchedule 2.20(f) of the Company Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement Agreement, nor the consummation of the transactions contemplated hereby will, will (either alone or in combination with another event: upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan, Employee Agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Employee; or (ii) result in any payment (including, but not limited to, any retention bonuses, parachute payments or noncompetition payments) becoming due to any employee benefit which will or former employee or group of employees or former employees of may be made by the Company or its Affiliates with respect to any Subsidiary; (ii) increase any benefits otherwise payable under any Plan; (iii) result in the acceleration of the time of payment or vesting of any such rights or benefits; or (iv) otherwise result in the payment of any Employee will be characterized as a "excess parachute payment," within the meaning of Section 280G 280G(b)(2) of the Code with respect to a current or former employee of the Company or any SubsidiaryCode.
(g) An entity is an "ERISA Affiliate" Each International Employee Plan (as defined below) has been established, maintained and administered in material compliance with its terms and conditions and with the requirements prescribed by any and all statutory or regulatory laws that are applicable to such International Employee Plan. Furthermore, no International Employee Plan has liabilities that under applicable law or the terms of the Company if it is any corporationInternational Employee Plan are required to be funded currently but are unfunded and that, trade as of the Effective Time, will not be offset by insurance or business whichfully accrued. Except as required by law, together with no condition exists that would prevent the Company, is a member the Surviving Corporation or SCM from terminating or amending any International Employee Plan at any time for any reason without material liability to the Company, the Surviving Corporation, SCM or any of a controlled group their respective Affiliates (other than administration expenses and premiums and expenses for benefits accrued but not yet paid). For purposes of corporations this Section "International Employee Plan" shall mean each Plan that has been adopted or a group maintained by the Company or any of trades its Affiliates, or businesses under common control within with respect to which the meaning Company or any Affiliate has any liability, for the benefit of Sections 414(b), (c), (m) or (o) of Employees outside the CodeUnited States.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (SCM Microsystems Inc)
Employee Benefit Plans and Compensation. (a) The Company has made available to Parent copies, which are correct and complete in all material respects, and is providing a list in Section 4.21(a3.23(a)(1) of the Disclosure Schedule, Schedule sets forth a table which provides next to each current Employee’s name as of the followingdate hereof: (i) all employee benefit plans (as defined in Section 3(3) of the each Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all "specified fringe benefit plans" (as defined in Section 6039D of the Code, and all bonus, stock option, stock purchase, restricted stock, incentive, equity or equity-based compensation, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, retention or other benefit plans, programs or arrangements, and all employment contracts or agreements to which the Company or any ERISA Affiliate is a party, Agreement with respect to which such Employee is a party (if different than the Company or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director or consultant of the Company or any ERISA Affiliate (collectively, the "Plans") and all amendments thereto, Company’s Employment Agreement template); (ii) the annual report (Form 5500) filed with the Internal Revenue Service ("IRS") for the last three plan years, full-time or part-time or consultant status of such Employee; (iii) the most recently received IRS determination letter (salary, wage, target bonus opportunity, as applicable, for such Employee, and any other severance, pension or IRS opinion letter issued for a prototype document maintained for a Plan), if any, relating to a Plan, other benefits such Employee is entitled to; (iv) accrued vacation/paid-time off for such Employee as of the most recently prepared actuarial report or financial statement, if any, relating to a Plandate hereof, (v) the most recent summary plan description date of hire for such Plan (or other descriptions of such Plan provided to employees) Employee and all modifications thereto, (vi) the name location where such Employee performs services. Section 3.23(a)(2) of each employeethe Disclosure Schedule contains an accurate and complete list of all Persons that have a non-vendor independent contractor, his consulting or her position, length of service and current annual rates of salary, and (vii) paid advisory relationship with the names of any employees that are on long-term or short-term disability. No current or former employee, officer, director or consultant is entitled to receive compensation or benefits from the Company or an ERISA Affiliate other than pursuant to the PlansCompany.
(b) Each Plan The Company has been operated in provided to Buyer correct and complete sample of current documents embodying each Employee Agreement including, without limitation, all material respects in accordance with its terms amendments thereto and the requirements of all applicable Laws, including ERISA and the Coderelated trust documents, and a schedule listing all reports, documents and notices required employee benefits provided to be filed with respect to each Plan have been timely filedthe Employees.
(c) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the IRS, and to the knowledge of the Company no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Plan or the exempt status of any such trust. All contributions due to the Plans on or before the Closing Date will be made prior to the Closing Date by the Company. The minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have always been satisfied, as applicable. No reportable events (as defined in Section 4043 of ERISA) have occurred with respect to any Plan.
(d) Except as set forth in Section 4.21(d) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that is subject to the provisions of Title IV of ERISA, is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, a voluntary employee beneficiary association or is a multiemployer plan within the meaning of Section 3(37) of ERISA, or has any obligation with respect to any such plan or arrangement and does not reasonably expect to incur any withdrawal liability relating to a multiemployer plan. Neither the Company nor any ERISA Affiliate sponsors or has sponsored any Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required by Section 4980B of the Code or similar state law.
(e) As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits), and the Company has no knowledge of any facts which could give rise to any action, suit, grievance, arbitration or other manner of litigation or claim with respect to the Plans. Neither the Company nor any of its ERISA Affiliates has engaged in any transactions with respect to any Plan that could subject the Company or any of its ERISA Affiliates to a material tax or penalty imposed by Section 4975, 4976 or 4980B of the Code or Sections 406, 409 or 502(i) of ERISA.
(f) Except as set forth in Section 4.21(f) of the Disclosure Schedule, neither the negotiation, execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, (either alone or in combination connection with another event: any termination of employment or service) will (i) result in any payment in accordance to a change of control provision within the employment agreement (includingincluding severance, but not limited togolden parachute, any retention bonusesbonus or otherwise), parachute payments or noncompetition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any Subsidiary; Employee, (ii) result in any forgiveness of indebtedness in accordance to a change of control provision within the employment agreement, (iii) materially increase any benefits otherwise payable under any Plan; by the Company or (iiiiv) result in the acceleration of the time of payment or vesting of any such rights benefits.
(d) As of the date of this Agreement, no executive, or benefits; group of employees has, to the Company’s Knowledge, any plans to terminate employment with the Company or (iv) otherwise result has provided written notice to terminate employment with the Company. The Company is not a party to or bound by any collective bargaining Contract or extension order, other than extension orders applying to all employees in Israel or to the payment Company's field of business , nor has the Company experienced any strikes, grievances, claims of unfair labor practices, or other material labor disputes. The Company has no Knowledge of any "excess parachute payment" within the meaning organizational effort currently being made or threatened by or on behalf of Section 280G of the Code any labor union with respect to a current or former employee the employees of the Company. To the Company's knowledge, the Company does not have any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another employer, or (c) any Subsidiaryemployee currently or formerly classified as exempt from overtime wages. There are no actions, suits, claims, labor disputes or grievances pending, or, to the Knowledge of the Company, threatened relating to any labor matters involving any Employee, including charges of unfair labor practices. To the Company's knowledge, all material liabilities and obligations relating to the termination of any former employees, including all termination pay, severance pay, benefits, or other amounts, have been satisfied, and no terminations prior to the Closing Date shall result in material unsatisfied liability under any Law, other than as set forth in Section 3.23(d) of the Disclosure Schedule.
(ge) An entity With respect to all Employees who reside or work in Israel or whose employment is an "ERISA Affiliate" otherwise subject to the law of the State of Israel (“Israeli Employees”), the Company if it is otherwise required (under any corporationlegal requirement, trade under any contract or business whichotherwise) to provide benefits or working conditions beyond the benefits and working conditions required by applicable law, together Employment Agreement or pursuant to extension orders applicable to all employees in Israel or to the Company's field of business. In respect of the employment of the Employees, to the Company's Knowledge, the Company is in compliance with the Companyprovisions of all material applicable law, is a member code (including code of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b)conduct),order, (c)agreement and arrangement, (m) or (o) of the Codeincluding, without limitation, with respect to employee safety.
Appears in 1 contract
Sources: Purchase Agreement (RR Media Ltd.)