Employee Benefit Programs. (a) Schedule 2.17 attached hereto sets forth a description of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof. (b) Each Employee Program listed on Schedule 2.17 hereto that has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s assets were distributed). No event or omission has occurred that would cause any Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program. (c) There has not been any failure of any party to comply with any laws applicable with respect to any Employee Program that has been maintained by Seller. With respect to any Employee Programs now or heretofore maintained by Seller, there has occurred no (i) “prohibited transaction” as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Code Section 4975 or (ii) breach of any duty under ERISA or other applicable law which, in the case of either of (i) or (ii), could result directly or indirectly in any taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued. (d) Neither Seller, nor any of its affiliates has ever (i) provided health care or any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan. (e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto. (f) For purposes of this Section 2.17:
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mac-Gray Corp), Asset Purchase Agreement (Mac-Gray Corp)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.23 sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by the Seller or an Affiliate at any time during the three (3) years prior to six-year period ending on the date hereof.
(b) Closing Date. Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Seller or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code") has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated Section (including without the imposition of any redemption feelimitation Code Sections 105, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3125, 401(a) of the Code) has occurred with respect to any Employee Program.
(c) There has not been any failure of any party to comply with any laws applicable with respect to any Employee Program that has been maintained by Sellerand 501(c)(9)). With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Seller or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 4975, or (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either of (i) or (ii), could result subject the Seller or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below). No litigation, arbitration, other loss or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, threatened with respect to any such Employee Programexpense. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Seller or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on Schedule 2.
(d) Neither Seller, nor any of its affiliates has ever (i) provided health care or any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto.
(f) For purposes of this Section 2.17:
Appears in 2 contracts
Sources: Asset Purchase Agreement (Duro Communications Corp), Asset Purchase Agreement (Duro Communications Corp)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 3.7 of the RMSI Disclosure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"RMSI Employee Programs").
(b) Each RMSI Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that all of such RMSI Employee Program’s assets were distributedProgram was terminated). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither RMSI nor any RMSI Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the RMSI Employee Program that has been maintained by SellerPrograms. With respect to any RMSI Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach material failure to comply with any ----- provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non- deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject RMSI or any RMSI Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of SellerRMSI, threatened with respect to any such RMSI Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerExcept as disclosed in Section 3.7 of the RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any of its affiliates has ever RMSI Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) ), or has ever promised to provide such post-post- termination benefits benefits, for a period of longer than 12 months or (iiiii) maintained an has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by RMSI prior to the date of this Agreement for a period of longer than 12 months.
(e) With respect to each RMSI Employee Program, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to ▇▇▇▇▇▇▇: (i) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such RMSI Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to assume such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or perform other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such RMSI Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast three years.
(f) Each RMSI Employee Program may be amended, terminated, or otherwise modified by RMSI to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any RMSI Employee Program and no condition exists which would limit the right of RMSI or the RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee Program.
(g) For purposes of this Section 2.17and Section 5.7:
Appears in 2 contracts
Sources: Merger Agreement (Merkert American Corp), Merger Agreement (Monroe James L)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by ▇▇▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇▇▇ (as defined belowa "▇▇▇▇▇▇▇ Affiliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"▇▇▇▇▇▇▇ Employee Programs").
(b) Each ▇▇▇▇▇▇▇ Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such ▇▇▇▇▇▇▇ Employee Program through and including the Closing Date (or, if earlier, the date that all of such ▇▇▇▇▇▇▇ Employee Program’s assets were distributed). No event or omission has occurred that which would cause any such ▇▇▇▇▇▇▇ Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither ▇▇▇▇▇▇▇ nor any ▇▇▇▇▇▇▇ Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the ▇▇▇▇▇▇▇ Employee Program that has been maintained by SellerPrograms. With respect to any ▇▇▇▇▇▇▇ Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) ERISA or Code Section 4975 or 4975, (ii) breach material failure to ----- comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller▇▇▇▇▇▇▇, threatened with respect to any such ▇▇▇▇▇▇▇ Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerExcept as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, during the last 3 years, neither ▇▇▇▇▇▇▇ nor any of its affiliates has ever ▇▇▇▇▇▇▇ Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "▇▇▇▇▇▇▇ Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) ), or has ever promised to provide such post-termination benefits, for a period longer than 12 months or (iii) has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by ▇▇▇▇▇▇▇ prior to the date of this Agreement for a period longer than 12 months.
(e) With respect to each ▇▇▇▇▇▇▇ Employee Program, complete and correct copies of the following documents (if applicable to such ▇▇▇▇▇▇▇ Employee Program) have previously been delivered to RMSI: (i) all documents embodying or governing such ▇▇▇▇▇▇▇ Employee Program, and any funding medium for the ▇▇▇▇▇▇▇ Employee Program (including, without limitation, trust agreements) as they may have been amended to the date hereof; (ii) maintained an the most recent IRS determination or approval letter with respect to such ▇▇▇▇▇▇▇ Employee Program that is subject to Title IV of ERISA, under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such ▇▇▇▇▇▇▇ Employee Program; (v) the summary plan description for such ▇▇▇▇▇▇▇ Employee Program (or other descriptions of such ▇▇▇▇▇▇▇ Employee Program provided to employees) and all modifications thereto; (vi) any insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such ▇▇▇▇▇▇▇ Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the last three years.
(f) Each ▇▇▇▇▇▇▇ Employee Program may be amended, terminated, or otherwise modified by ▇▇▇▇▇▇▇ to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any ▇▇▇▇▇▇▇ Employee Program and, except as disclosed on Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, no condition exists which would limit the right of ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Affiliate to so amend, terminate or otherwise modify such ▇▇▇▇▇▇▇ Employee Program.
(g) No liability under Title IV or Section 302 of ERISA has been incurred by ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate that has not been satisfied in full and no condition exists that presents a material risk to ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate of incurring any such liability, other than liability for premiums due to the PBGC (which premiums have been paid when due).
(h) The PBGC has not instituted proceedings to terminate any ▇▇▇▇▇▇▇ Title IV Plan and no condition exists that presents a material risk that such proceedings will be instituted.
(i) Except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, with respect to each ▇▇▇▇▇▇▇ Title IV Plan, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(j) No ▇▇▇▇▇▇▇ Title IV Plan or any trust established there under has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), includingwhether or not waived, without limitation, any Multiemployer Planas of the last day of the most recent fiscal year of each ▇▇▇▇▇▇▇ Title IV Plan ended prior to the Closing Date.
(ek) No Seller amounts payable under the ▇▇▇▇▇▇▇ Employee Program Programs will obligate Buyer fail to assume be deductible for federal income tax purposes by virtue of Section 162(a)(1), 162(m) or perform any obligation thereunder as a result 280G of the transactions contemplated by this Agreement or any agreement or document executed pursuant heretoCode.
(f) For purposes of this Section 2.17:
Appears in 2 contracts
Sources: Merger Agreement (Merkert American Corp), Merger Agreement (Monroe James L)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 4.19 sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company or an ERISA Affiliate at any time during the three three-year period ending on the Closing Date (3) years prior each Employee Program listed or required to the date hereofbe listed on Schedule 4.19 being referred to herein as a "Company Employee Program").
(b) Each Company Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Company Employee Program through and including the Closing Date (or, if earlier, the date that all of such Company Employee Program’s 's assets were distributed). No To the knowledge of the Company, no event or omission has occurred that which would cause any Company Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including, without limitation, Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Company Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Company Employee Program.
(c) There Each Company Employee Program has not been any failure of any party to comply maintained and operated in all material respects in accordance with any the laws applicable with respect to any such Company Employee Program that has been maintained by Sellerand all agreements related to such Company Employee Program. With respect to any Company Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”) "), or Code Section 4975 4975, or (ii) breach of any duty under ERISA or other applicable law non-deductible contribution, which, in the case of either any of (i) or (ii), could result would subject the Company or any ERISA Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Sellerthe Company, threatened with respect to any such Company Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Company Employee Programs Programs, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on Schedule 4.19).
(d) Neither SellerExcept as set forth on Schedule 4.19, neither the Company nor any of its affiliates has ever ERISA Affiliate (i) has ever maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 or ERISA Section 302, including, but not limited to, any Multiemployer Plan or (ii) has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits benefits.
(e) With respect to each Company Employee Program, complete and correct copies of the following documents (if applicable to such Company Employee Program) have previously been delivered, or made available, to Parent: (iii) maintained an all documents embodying or governing such Company Employee Program, and any funding medium for the Company Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Company Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to assume such Company Employee Program; (v) the summary plan description for such Company Employee Program (or perform other descriptions of such Company Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Company Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law; and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast three years with respect to such Company Employee Program.
(f) Each Company Employee Program may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Company Employee Program, and no employee communications have restricted the rights of the Company or the ERISA Affiliate to so amend, terminate or otherwise modify such Company Employee Program.
(g) Each Company Employee Program has been maintained in compliance in all material respects with all applicable requirements of federal and state securities laws including, without limitation, the requirements that the offering of interests in such Employee Program be registered under the Securities Act of 1933, as amended, and/or state "Blue Sky" laws.
(h) Each Company Employee Program has complied in all material respects with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) The Company has terminated its 401(k) plan and fully vested all participants in such plan. The Company has accrued for the payment of all amounts payable under the incentive, bonus and retention plans and arrangements of the Company and its Subsidiaries (a true and complete list of which is set forth on Schedule 4.19), and all such plans and arrangements shall terminate as of the Effective Time. Schedule 4.19 sets forth a complete and accurate listing of all of the Management Severance Costs, and such Management Severance Costs represent all amounts payable by the Company or the Surviving Corporation to discharge in full its obligations under the Management Employment Agreements.
(j) For purposes of this Section 2.17section:
Appears in 1 contract
Sources: Merger Agreement (Cognex Corp)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 3.7 of the RMSI Disclosure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"RMSI Employee Programs").
(b) Each RMSI Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that all of such RMSI Employee Program’s assets were distributedProgram was terminated). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither RMSI nor any RMSI Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the RMSI Employee Program that has been maintained by SellerPrograms. With respect to any RMSI Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach material failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject RMSI or any RMSI Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of SellerRMSI, threatened with respect to any such RMSI Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerExcept as disclosed in Section 3.7 of the RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any of its affiliates has ever RMSI Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) ), or has ever promised to provide such post-termination benefits benefits, for a period of longer than 12 months or (iiiii) maintained an has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by RMSI prior to the date of this Agreement for a period of longer than 12 months.
(e) With respect to each RMSI Employee Program, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to Merk▇▇▇: (▇) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such RMSI Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to assume such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or perform 20 other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such RMSI Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast three years.
(f) Each RMSI Employee Program may be amended, terminated, or otherwise modified by RMSI to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any RMSI Employee Program and no condition exists which would limit the right of RMSI or the RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee Program.
(g) For purposes of this Section 2.17and Section 5.7:
Appears in 1 contract
Sources: Merger Agreement (Butler Bruce A)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto sets forth a description of 2.25 lists every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company or any of its Subsidiaries at any time during the three (3) years prior to three-year period ending on the date hereofof the Closing.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or any of its Subsidiaries and which has at any time been intended to qualify under Section 401(a401 (a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There The Company does not know and has not been no reason to know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have been maintained by Sellerthe Company or any of its Subsidiaries. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any of its Subsidiaries, there has occurred no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 of the Code, or (ii) breach of any duty under ERISA or other applicable law which(including, in the case of either of (i) without limitation, any health care continuation requirements or (iiany other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result result, directly or indirectly indirectly, in any taxes, penalties or other liability to the Company, any Subsidiary, or Buyer, Seller or any affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Sellerthe Company, nor any of its affiliates Subsidiary or any Affiliate (as defined below) has ever maintained any Employee Program which has been subject to title IV of ERISA (iincluding, but not limited to, any Multiemployer Plan (as defined below)) or (ii) has ever provided health care or any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto.
(f) For purposes of this Section 2.17:after
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.27 sets forth a description list of every Employee Program (as defined below) that has been maintained by the Company or an Affiliate (as such term is further defined belowincluding, without limitation, any entity or business which the Company or any Subsidiary has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) by Seller at any time during the three (3) years prior to six-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No Except as set forth on Schedule 2.27, no event or omission has occurred that which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each Except as set forth on Schedule 2.27, each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Except as set forth on Schedule 2.27, neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (other loss or expense. Except as defined below). No litigationdisclosed on Schedule 2.27, arbitration, no litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, nor any of its affiliates has ever (i) provided health care maintained by the Company or any other non-pension benefits Affiliate, for all periods prior to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISAthe Closing Date, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto.
(f) For purposes of this Section 2.17:either
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule 2.17 2.20 attached hereto sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company or an Affiliate at any time during the three six- (3) years prior to 6)- year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that has been which is maintained by the Company or an Affiliate and which is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) regarding its qualification under such section Section and hasto the Company’s knowledge, in fact, been nothing has occurred which would reasonably be expected to cause such Employee Program to fail to be so qualified under the applicable section Section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s assets were distributed). No To the Company’s knowledge, no event or omission has occurred that which would cause any Employee Program to lose its qualification qualification, if applicable, or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any material redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been any no failure of the Company or any party Affiliate to comply with any laws or agreements (other than insignificant or immaterial non-compliance) applicable with respect to the Employee Programs that are maintained by the Company or any Affiliate. With respect to any Employee Program that has been is maintained by Seller. With respect to the Company or any Employee Programs now or heretofore maintained by SellerAffiliate, there has occurred been no (i) “prohibited transaction,” as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) ERISA or Code Section 4975 or 4975, (ii) breach failure to comply in any material respect with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either of (i) or (ii), could result subject the Company or any Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of SellerCompany’s knowledge, threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on Schedule 2.20 attached hereto).
(d) Neither Seller, the Company nor any Affiliate has incurred any liability under Title IV of its affiliates ERISA which has not been paid in full prior to the Closing. There has been no “accumulated funding deficiency” (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA, there has been no (nor will there be any as a result of the transactions contemplated by this Agreement) (i) “reportable event,” within the meaning of ERISA Section 4043 or the regulations thereunder, for which the notice requirement is not waived by the regulations thereunder, and (ii) event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. No Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA (other than a Multiemployer Plan) has any “unfunded benefit liabilities” within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company or any Affiliate within the six (6) years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been made available to Buyer: (i) all plan documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the six (6) most recently filed IRS Forms 5500, with all applicable schedules and accountants’ opinions attached thereto; (iv) the six (6) most recent actuarial valuation reports completed with respect to assume such Employee Program; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all material correspondence to and from any state or federal agency within the transactions contemplated by this Agreement last six (6) years with respect to such Employee Program (but excluding routine correspondence with such agencies, or any agreement or document executed pursuant heretocorrespondence related to workers’ compensation claims).
(f) Each Employee Program required to be listed on Schedule 2.20 attached hereto may be amended, terminated, or otherwise modified by the Company or Affiliate, as applicable, to the greatest extent permitted by applicable law; provided, however, that any such amendment, modification or termination may not adversely affect an employee’s rights to accrued benefits, including the elimination of any and all future benefit accruals under any Employee Program and no employee communications or provision of any Employee Program document has failed to effectively reserve the right of the Company to so amend, terminate or otherwise modify such Employee Program.
(g) Except as otherwise described on Schedule 2.20, each Employee Program maintained by the Company or any Affiliate (including each non-qualified deferred compensation arrangement) has been maintained in material compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act of 1933 (the “Securities Act”) and/or state “Blue Sky” laws.
(h) Each Employee Program ever maintained by the Company or any Affiliate has complied in all material respects with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns’ and Mothers’ Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women’s Health and Cancer Rights Act of 1998.
(i) For purposes of this Section 2.17:2.20: (i) “Employee Program” means (A) all employee benefit plans within the meaning of ERISA Section 3(3), including, but not limited to, multiple employer welfare arrangements (within the meaning of ERISA Section 3(40)), plans to
Appears in 1 contract
Sources: Merger Agreement (Inverness Medical Innovations Inc)
Employee Benefit Programs. (a) Schedule 2.17 3.12 attached hereto sets forth a description of lists every Employee Program (as ------------- defined below) that has been maintained (as such term is further defined below) by Seller SSA and/or ▇▇▇▇▇▇ at any time during the three (3) years prior to three-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by SSA and/or ▇▇▇▇▇▇ and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There SSA and/or ▇▇▇▇▇▇ does not know and has not been no reason to know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have been maintained by SellerSSA and/or ▇▇▇▇▇▇. With respect to any Employee Programs now or heretofore Program ever maintained by SellerSSA and/or ▇▇▇▇▇▇, there has occurred no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 of the Code, or (ii) breach of any duty under ERISA or other applicable law which(including, in the case of either of (i) without limitation, any health care continuation requirements or (iiany other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result result, directly or indirectly indirectly, in any taxes, penalties or other liability to BuyerSSA, Seller ▇▇▇▇▇▇, the SSA Surviving Corporation, the ▇▇▇▇▇▇ Surviving Corporation or any affiliate (as defined below)Parent. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, SSA or ▇▇▇▇▇▇ nor any of its affiliates has ever Affiliate (as defined below) (i) has ever maintained any Employee Program which has been subject to title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or (ii) has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-post- termination benefits benefits.
(e) With respect to each Employee Program maintained by SSA and/or ▇▇▇▇▇▇ within the three years (3) preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered to Parent: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) maintained the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is subject a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for the SSA Surviving Corporation, ▇▇▇▇▇▇ Surviving Corporation and Parent to Title IV perform any of ERISA, Section 401(a) or Section 412 of its responsibilities with respect to any Employee Program subsequent to the Code, Closing (including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant heretohealth care continuation requirements).
(f) For purposes of this Section 2.17section:
Appears in 1 contract
Sources: Merger Agreement (Mac-Gray Corp)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto sets forth a description of 2.27 lists every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller any GB&C Entity at any time during the three (3) years prior to three-year period ending on the date hereofClosing date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by any GB&C Entity and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There No GB&C Entity knows or has not been reason to know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have been maintained by Sellerany GB&C Entity. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerany GB&C Entity, there has occurred no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 of the Code, or (ii) breach of any duty under ERISA or other applicable law which(including, in the case of either of (i) without limitation, any health care continuation requirements or (iiany other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result result, directly or indirectly indirectly, in any taxes, penalties or other liability to Buyerany GB&C Entity, Seller or any affiliate (as defined below)the Company. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, nor No GB&C Entity or any of its affiliates has ever Affiliate (as defined below) (i) has ever maintained any Employee Program which has been subject to title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or (ii) has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits benefits.
(e) With respect to each Employee Program maintained by any GB&C Entity within the three years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered to the Company: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) maintained the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is subject a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for Buyer to Title IV perform any of ERISA, Section 401(a) or Section 412 of its responsibilities with respect to any Employee Program subsequent to the Code, Closing (including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant heretohealth care continuation requirements).
(f) For purposes of this Section 2.17section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.27 sets forth a description list of every Employee Program (as defined below) that has been maintained by the Company or an Affiliate (as such term is further defined belowincluding, without limitation, any entity or business which the Company has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) by Seller at any time during the three (3) years prior to six-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on Schedule 2.27).
(d) Neither Seller, the Company nor any Affiliate has incurred any liability under Title IV of its affiliates ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever (i) provided health care maintained by the Company or any other non-pension benefits Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is maintained by the Company or any Affiliate and subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, there has been no (nor will there be any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement Agreement) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder, for which the notice requirement is not waived by the regulations thereunder, and (ii) event or condition which presents a material risk of a plan termination or any agreement or document executed pursuant hereto.
(f) For purposes of this Section 2.17:other event that may cause the Company
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule 2.17 2.24 attached hereto sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by the Seller or an Affiliate at any time during the three (3) years prior to six-year period ending on the date hereof.
(b) Closing Date. Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Seller or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated Section (including without the imposition of any redemption feelimitation Code Sections 105, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3125, 401(a) of the Code) has occurred with respect to any Employee Program.
(c) There has not been any failure of any party to comply with any laws applicable with respect to any Employee Program that has been maintained by Sellerand 501(c)(9)). With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Seller or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach non-deductible contribution, or (iii) failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either any of (i), (ii) or (iiiii), could result subject the Seller or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, nor any of its affiliates has ever (i) provided health care maintained by the Seller or any other non-pension benefits Affiliate, for all periods prior to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto.
(f) For purposes of this Section 2.17:Closing
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto SCHEDULE 2.27 sets forth a description list of every Employee Program (as defined below) that has been maintained by the Company or an Affiliate (as such term is further defined belowincluding, without limitation, any entity or business which the Company or any Subsidiary has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) by Seller at any time during the three (3) years prior to six-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No Except as set forth on SCHEDULE 2.27, no event or omission has occurred that which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each Except as set forth on SCHEDULE 2.27, each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Except as set forth on SCHEDULE 2.27, neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (other loss or expense. Except as defined below). No litigationdisclosed on SCHEDULE 2.27, arbitration, no litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on SCHEDULE 2.27).
(d) Neither Seller, the Company nor any Affiliate has incurred any liability under Title IV of its affiliates ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA, there has been no (nor will there be any as a result of the transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder, for which the notice requirement is not waived by the regulations thereunder, and (ii) event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. Except as described in SCHEDULE 2.27, no Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. Except as described on SCHEDULE 2.27, none of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company within the six years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to assume such Employee Program; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast six years with respect to such Employee Program.
(f) Each Employee Program required to be listed on SCHEDULE 2.27 may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program and no employee communications or provision of any Employee Program document has failed to effectively reserve the right of the Company or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act of 1933, as amended, and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996 and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this Section 2.17section:
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 3.7 of the RMSI Disclosure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"RMSI Employee Programs").
(b) Each RMSI Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that all of such RMSI Employee Program’s assets were distributedProgram was terminated). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither RMSI nor any RMSI Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the RMSI Employee Program that has been maintained by SellerPrograms. With respect to any RMSI Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach material failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject RMSI or any RMSI Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of SellerRMSI, threatened with respect to any such RMSI Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerExcept as disclosed in Section 3.7 of the RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any of its affiliates has ever RMSI Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) ), or has ever promised to provide such post-termination benefits benefits, for a period of longer than 12 months or (iiiii) maintained an has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by RMSI prior to the date of this Agreement for a period of longer than 12 months.
(e) With respect to each RMSI Employee Program, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to ▇▇▇▇▇▇▇: (i) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such RMSI Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to assume such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or perform other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such RMSI Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast three years.
(f) Each RMSI Employee Program may be amended, terminated, or otherwise modified by RMSI to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any RMSI Employee Program and no condition exists which would limit the right of RMSI or the RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee Program.
(g) For purposes of this Section 2.17and Section 5.7:
Appears in 1 contract
Sources: Merger Agreement (Richmont Marketing Specialists Inc)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.27 sets forth a description list of every Employee Program (as defined below) that has been maintained by the Company or an Affiliate (as such term is further defined belowincluding, without limitation, any entity or business which the Company has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) by Seller at any time during the three (3) years prior to six-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on Schedule 2.27).
(d) Neither Seller, the Company nor any Affiliate has incurred any liability under title IV of its affiliates ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA, there has been no (nor will there be any as a result of the transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder, for which the notice requirement is not waived by the regulations thereunder, and (ii) event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. Except as described in Schedule 2.27, no Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company within the six years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to assume such Employee Program; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast six years with respect to such Employee Program.
(f) For purposes Each Employee Program required to be listed on Schedule 2.27 may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of this Section 2.17:any and all future benefit accruals under any Employee Program and no employee communications or provision of any Employee Program
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.25 sets forth a description list of every Employee Program (as defined below) ------------- that has been maintained (as such term is further defined below) by Seller the Company or an Affiliate at any time during the three (3) years prior to three-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Schedule 2.25 has, in fact, been qualified under the ------------- applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed)) and no amendment to any Employee Program or failure to amend any Employee Program has occurred with respect to which the remedial amendment period described in Treasury Regulation Section 1.401(b)-1 has expired. No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each section and each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, for surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach ----- material failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Sellerthe Company and the Stockholders, threatened with respect to any such Employee Program. All payments Notwithstanding anything to the contrary in subsection (b) and/or contributions required (c) of this Section 2.25, no representation is made as to have been made the satisfaction of any formal requirements of the Code (relating to the documentation of such Employee Programs) with respect to all Employee Programs either have been made which the remedial amendment period set forth in Section 401(b) of the Code, and any regulations, rulings or have been accruedother releases thereunder has not yet expired.
(d) Neither Seller, the Company nor any of its affiliates has ever Affiliate (i) has ever maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412, including, but not limited to, any Multiemployer Plan, (ii) except as disclosed in Schedule 2.25, has ever provided health care or any other non-non- ------------- pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits or (iiiii) maintained an except as disclosed in Schedule 2.25, has ever provided health care or any other non-pension ------------- benefits to any individuals who were previously employed by entities acquired by the Company prior to the date of this Agreement.
(e) With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company within the three years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to assume such Employee Program; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast three years.
(f) Each Employee Program required to be listed on Schedule 2.25 ------------- may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program and no employee communications or provision of any Employee Program document has ever purported to limit the right of the Company or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act and/or state "blue sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied in all material respects with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, and the Mental Health Parity Act of 1996.
(i) For purposes of this Section 2.17section:
Appears in 1 contract
Employee Benefit Programs. (a) Section 5.18 of the Company Disclosure Schedule 2.17 attached hereto sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company or an Affiliate at any time during the three (3) years prior to five-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described in Section 5.18 of the Company Disclosure Schedule.
(d) Neither Seller, the Company nor any of its affiliates Affiliate has ever (i) maintained an Employee Program subject to Title IV of ERISA. Neither the Company nor any Affiliate has ever contributed to or been obligated to contribute to a Multiemployer Plan and neither the Company nor any Affiliate has ever had any collectively bargained employees. Except as set forth in Section 5.18 of the Company Disclosure Schedule, none of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company within the five (5) years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to Parent or its representatives: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the five (5) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to assume employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy or perform fidelity bond) related to such Employee Program; (vi) any obligation thereunder as a result of registration statement or other filing made pursuant to any federal or state securities law and (vii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast five (5) years with respect to such Employee Program.
(f) Each Employee Program required to be listed in Section 5.18 of the Company Disclosure Schedule may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program and no employee communications or provision of any Employee Program document has failed to effectively reserve the right of the Company or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in material compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this Section 2.17section:
Appears in 1 contract
Sources: Merger Agreement (Inverness Medical Technology Inc/De)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto sets forth a description of 2.24 lists every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company at any time during the three (3) years prior to three-year period ending on the date hereofof the Closing.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9of the Code, and each associated trust which at any time has been intended to be exempt from taxation pursuant to Section 501(a) of the Code has received is the subject of a favorable determination determination, opinion or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification or exemption from taxation, as applicable, under such section and has, in fact, been qualified or tax exempt, as applicable, under the applicable section of the Code from for all periods for which the effective date applicable statute of such Employee Program limitations has not expired through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There The Company does not know and has not been no reason to know, of any failure of any party to comply in any material respect with any laws applicable with respect to any the Employee Program Programs that has have been maintained by Sellerthe Company. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company for all periods for which the applicable statute of limitations has not expired, there has occurred no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 of the Code, or (ii) any material violation of, or material breach of any duty under under, ERISA or other applicable law which, in the case of either of (i) or (ii), could result directly or indirectly in any taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, nor any of its affiliates has ever (i) provided health care or any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan.
health care continuation requirements (eunder part 6 of subtitle B of Title I or ERISA, or otherwise) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement other tax law requirements, or document executed pursuant hereto.
(f) For purposes of this Section 2.17:conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes,
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.24 sets forth a description list of every Employee Program that has ------------- been maintained by Seller or an Affiliate (as defined below) that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to six-year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by Seller or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither Seller nor any Affiliate knows of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by SellerSeller or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject Seller or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by Seller or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued.accrued (and all such unpaid but accrued amounts are described on Schedule 2.24). -------------
(d) Neither Seller, Seller nor any of its affiliates has ever Affiliate (i) has ever maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 or ERISA Section 302, including, but not limited to, any Multiemployer Plan or (ii) has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-post- termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by Seller within the six years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to assume such Employee Program; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast six years with respect to such Employee Program.
(f) Each Employee Program required to be listed on Schedule 2.24 may ------------- be amended, terminated, or otherwise modified by Seller to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program and no employee communications or provision of any Employee Program document has failed to effectively reserve the right of Seller or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) Each Employee Program ever maintained by Seller (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by Seller or an Affiliate has complied with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this Section 2.17section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 5.7 of the Merk▇▇▇ ▇▇▇closure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by Merk▇▇▇ ▇▇ an Affiliate of Merk▇▇▇ (as defined below▇ "Merk▇▇▇ ▇▇▇iliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"Merk▇▇▇ ▇▇▇loyee Programs").
(b) Each Employee Merk▇▇▇ ▇▇▇loyee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 5.7 of the Merk▇▇▇ ▇▇▇closure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Merk▇▇▇ ▇▇▇loyee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Merk▇▇▇ ▇▇▇loyee Program’s assets were distributed). No event or omission has occurred that which would cause any Employee such Merk▇▇▇ ▇▇▇loyee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither Merk▇▇▇ ▇▇▇ any Merk▇▇▇ ▇▇▇iliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any Employee Program that has been maintained by Sellerthe Merk▇▇▇ ▇▇▇loyee Programs. With respect to any Employee Programs now or heretofore maintained by SellerMerk▇▇▇ ▇▇▇loyee Program, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) ERISA or Code Section 4975 or 4975, (ii) breach material failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject Merk▇▇▇ ▇▇ any Merk▇▇▇ ▇▇▇iliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, nor any of its affiliates has ever (i) provided health care or any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, including, without limitation, any Multiemployer Plan.
(e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto.
(f) For purposes of this Section 2.17:those
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by ▇▇▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇▇▇ (as defined belowa "▇▇▇▇▇▇▇ Affiliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"▇▇▇▇▇▇▇ Employee Programs").
(b) Each ▇▇▇▇▇▇▇ Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such ▇▇▇▇▇▇▇ Employee Program through and including the Closing Date (or, if earlier, the date that all of such ▇▇▇▇▇▇▇ Employee Program’s assets were distributed). No event or omission has occurred that which would cause any such ▇▇▇▇▇▇▇ Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither ▇▇▇▇▇▇▇ nor any ▇▇▇▇▇▇▇ Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the ▇▇▇▇▇▇▇ Employee Program that has been maintained by SellerPrograms. With respect to any ▇▇▇▇▇▇▇ Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) ERISA or Code Section 4975 or 4975, (ii) breach material failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller▇▇▇▇▇▇▇, threatened with respect to any such ▇▇▇▇▇▇▇ Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerExcept as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, during the last 3 years, neither ▇▇▇▇▇▇▇ nor any of its affiliates has ever ▇▇▇▇▇▇▇ Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "▇▇▇▇▇▇▇ Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) ), or has ever promised to provide such post-termination benefits, for a period longer than 12 months or (iii) has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by ▇▇▇▇▇▇▇ prior to the date of this Agreement for a period longer than 12 months.
(e) With respect to each ▇▇▇▇▇▇▇ Employee Program, complete and correct copies of the following documents (if applicable to such ▇▇▇▇▇▇▇ Employee Program) have previously been delivered to RMSI: (i) all documents embodying or governing such ▇▇▇▇▇▇▇ Employee Program, and any funding medium for the ▇▇▇▇▇▇▇ Employee Program (including, without limitation, trust agreements) as they may have been amended to the date hereof; (ii) maintained an the most recent IRS determination or approval letter with respect to such ▇▇▇▇▇▇▇ Employee Program that is subject to Title IV of ERISA, under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such ▇▇▇▇▇▇▇ Employee Program; (v) the summary plan description for such ▇▇▇▇▇▇▇ Employee Program (or other descriptions of such ▇▇▇▇▇▇▇ Employee Program provided to employees) and all modifications thereto; (vi) any insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such ▇▇▇▇▇▇▇ Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the last three years.
(f) Each ▇▇▇▇▇▇▇ Employee Program may be amended, terminated, or otherwise modified by ▇▇▇▇▇▇▇ to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any ▇▇▇▇▇▇▇ Employee Program and, except as disclosed on Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, no condition exists which would limit the right of ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Affiliate to so amend, terminate or otherwise modify such ▇▇▇▇▇▇▇ Employee Program.
(g) No liability under Title IV or Section 302 of ERISA has been incurred by ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate that has not been satisfied in full and no condition exists that presents a material risk to ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Affiliate of incurring any such liability, other than liability for premiums due to the PBGC (which premiums have been paid when due).
(h) The PBGC has not instituted proceedings to terminate any ▇▇▇▇▇▇▇ Title IV Plan and no condition exists that presents a material risk that such proceedings will be instituted.
(i) Except as disclosed in Section 5.7 of the ▇▇▇▇▇▇▇ Disclosure Letter, with respect to each ▇▇▇▇▇▇▇ Title IV Plan, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(j) No ▇▇▇▇▇▇▇ Title IV Plan or any trust established there under has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), includingwhether or not waived, without limitation, any Multiemployer Planas of the last day of the most recent fiscal year of each ▇▇▇▇▇▇▇ Title IV Plan ended prior to the Closing Date.
(ek) No Seller amounts payable under the ▇▇▇▇▇▇▇ Employee Program Programs will obligate Buyer fail to assume be deductible for federal income tax purposes by virtue of Section 162(a)(1), 162(m) or perform any obligation thereunder as a result 280G of the transactions contemplated by this Agreement or any agreement or document executed pursuant heretoCode.
(f) For purposes of this Section 2.17:
Appears in 1 contract
Sources: Merger Agreement (Richmont Marketing Specialists Inc)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto Section 3.7 of the RMSI Disclosure Letter sets forth a description list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereof"RMSI Employee Programs").
(b) Each RMSI Employee Program listed on Schedule 2.17 hereto that which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that all of such RMSI Employee Program’s assets were distributedProgram was terminated). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither RMSI nor any RMSI Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to any the RMSI Employee Program that has been maintained by SellerPrograms. With respect to any RMSI Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach material failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject RMSI or any RMSI Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of SellerRMSI, threatened with respect to any such RMSI Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerExcept as disclosed in Section 3.7 of the RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any of its affiliates has ever RMSI Affiliate (i) has maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412 (a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) ), or has ever promised to provide such post-post- termination benefits benefits, for a period of longer than 12 months or (iiiii) maintained an has provided health care or any other non-pension benefits to any individuals who were previously employed by entities acquired by RMSI prior to the date of this Agreement for a period of longer than 12 months.
(e) With respect to each RMSI Employee Program, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to Merk▇▇▇: (▇) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such RMSI Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to assume such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or perform any obligation thereunder as a result other descriptions of the transactions contemplated by this Agreement or any agreement or document executed pursuant hereto.
(fsuch RMSI Employee Program provided to employees) For purposes of this Section 2.17:and all modifications
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.23 sets forth a description complete and correct list of every Employee Program (as defined belowhereinafter defined) that has been maintained (as such term is further defined belowhereinafter defined) by Seller the Company at any time during time. The Company has heretofore delivered accurate and complete copies of all documents, agreements, instruments, filings and disclosures which contain descriptions of the three (3) years prior rights and benefits granted to the date hereofparticipants in each Employee Program.
(b) Each Except as set forth in Schedule 2.23, each Employee Program listed on Schedule 2.17 hereto that has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code Code, has either (i) received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section Section within the applicable remedial amendment period and has, in fact, been qualified under the applicable section Section of the Code from the effective date of such Employee Program through and including the Closing Date Effective Time, or (orii) is a standardized, if earlier, regional prototype plan that has received a favorable opinion letter from the date that all of such Employee Program’s assets were distributed). No event or omission has occurred that would cause any Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee ProgramIRS.
(c) There Except as set forth in Schedule 2.23 attached hereto, there has not been any failure of any party the Company to comply in all material respects with any laws applicable with respect to any Employee Program that (and each related trust insurance contract or fund), and each Employee Program (and each related trust, insurance contract or fund) has been maintained by Selleradministered or operated in accordance within the terms of the applicable controlling documents. With respect to any Employee Programs now or heretofore maintained by SellerProgram, there has occurred no (i) “prohibited transaction,” as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) ), or Code Section 4975 of the Code, or (ii) breach Breach of any duty under ERISA or other applicable law whichlaw. Except as set forth in Schedule 2.23 attached hereto, in the case of either of (i) or (ii), could result directly or indirectly in any taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) no Claim or other proceeding (other than those relating to routine claims Claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program.
(d) Neither the Company nor any of its affiliates has maintained a “defined benefit plan” (as defined in Section 3(35) of ERISA) or other plan subject to Title IV of ERISA or the minimum fund requirements of Section 412 of the Code. All Except as set forth in Schedule 2.23 attached hereto, all payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs Programs, for all periods prior to Closing (including, without limitation, payment of any premiums), either have been made or have been accrued.
(d) . Neither Seller, the Company nor any of its affiliates has ever (i) maintained a “multiemployer plan” within the meaning of ERISA Section 3(37). None of the Employee Programs has ever provided health care or any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 the Consolidated Omnibus Budget Reconciliation Act of Subtitle B of Title I of ERISA1985, as amended (“COBRA”) or any other health benefits law) or has ever promised to provide such post-termination benefits. Except as set forth on Schedule 2.23, there are no promised increases in benefits (whether expressed, implied, oral or (iiwritten) maintained an under any Employee Program, nor are there any obligations, commitments or understandings to continue any benefits under such Employee Program that (whether expressed, implied, oral or written), except as required by COBRA. Each Employee Program may be modified, amended, or terminated by the Company at any time. As of the Effective Time, each Employee Program may be terminated by the Company or its affiliate without any further liability or obligation on the part of the Company or its affiliate, other than the payment of benefits pursuant to such program, and the termination of any Employee Program will not accelerate or increase any benefits payable under such program. Each Employee Program which is subject to a “group health plan” within the meaning of Section 5000 of the Code has been maintained in compliance with Section 4980B of the Code and Title IV I, Subtitle B, Part 6 of ERISA, and no tax payable on account of Section 401(a) or Section 412 4980B of the Code, Code has been or is expected to be incurred.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment to be made by the Company (including, without limitation, any Multiemployer Plan.
severance, unemployment compensation, or parachute payment (e) No Seller Employee Program will obligate Buyer to assume or perform any obligation thereunder as a result defined in Section 280G of the transactions contemplated by this Agreement Code)) becoming due to any employee, director or consultant, or (ii) increase any agreement or document executed pursuant heretobenefits otherwise payable under any Employee Program.
(f) For purposes of this Section 2.172.23 and as otherwise referenced to in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Globalscape Inc)
Employee Benefit Programs. (a) Schedule 2.17 attached hereto SCHEDULE 3.23 sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company at any time during the three (3) years prior to three-year period ending on the date hereof.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has been maintained by a Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code Code, has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that would cause any Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.has
(c) There Except as otherwise disclosed on SCHEDULE 3.23, there has not been any failure of any party to comply with any laws applicable with respect to or the terms of any Employee Program Programs that has have been maintained by Sellerthe Company, except for any failures to comply that, individually or in the aggregate, would not have a material adverse effect on the properties, assets, business, financial condition or prospects of the Company. With respect to any Employee Programs Program now or heretofore maintained by Sellerthe Company, there has occurred no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”) "), or Code Section 4975 of the Code, or (ii) breach of any duty under ERISA or other applicable law which(including, in the case of either of (i) without limitation, any health care continuation requirements or (iiany other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result result, directly or indirectly (including without limitation through any obligation of indemnification or contribution) in any taxes, penalties or other liability to Buyer, Seller the Company or any affiliate Affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) investigation or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, the Company nor any of its affiliates Affiliate has ever (i) provided health care or maintained any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an Employee Program that is subject to Title IV of ERISA.
(e) Except as otherwise disclosed on SCHEDULE 3.23, Section 401(a) or Section 412 with respect to each Employee Program maintained by the Company within the three years preceding the date hereof, complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to the Parent: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to assume or perform employees) and all modifications thereto; (v) any obligation thereunder as insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; and (vi) any documents evidencing any loan to an Employee Program that is a result of the transactions contemplated by this Agreement or any agreement or document executed pursuant heretoleveraged employee stock ownership plan.
(f) Each Employee Program maintained by the Company as of the date hereof is subject to amendment or termination by the Board of Directors of the Company without any further liability or obligation on the part of the Company to make further contributions to any trust maintained under any such Employee Program following such termination and the Company has not made any written or oral representations to the contrary to its employees.
(g) For purposes of this Section 2.17SECTION 3.23:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.19 sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller the Company or an ERISA Affiliate at any time during the three (3) years prior to six-year period ending on the date hereofClosing Date.
(b) Each No Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an ERISA Affiliate, which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code and which has received requested a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section has been denied a favorable determination or approval letter and each such Employee Program has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There Neither the Company nor any ERISA Affiliate has not been any Knowledge of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any ERISA Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any ERISA Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any ERISA Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any ERISA Affiliate, for all periods prior to the Closing Date, either have been made or have been accruedaccrued (and all such unpaid but accrued amounts are described on Schedule 2.19).
(d) Neither Seller, the Company nor any ERISA Affiliate has incurred any liability under title IV of its affiliates ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any ERISA Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or any ERISA Affiliate and subject to Title IV of ERISA, there has been no (nor will there be any as a result of the transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder, for which the notice requirement is not waived by the regulations thereunder, and (ii) event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any ERISA Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. Except as described in Schedule 2.19, no Employee Program maintained by the Company or any ERISA Affiliate and subject to Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. With respect to each Multiemployer Plan maintained by the Company or any ERISA Affiliate, Schedule 2.19 states the amount of withdrawal liability or other termination liability that would be incurred by the Company or ERISA Affiliate if there were a cessation of operations or of the obligation to contribute to such plan as of the Closing Date. None of the Employee Programs ever maintained by the Company or any ERISA Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company within the six years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to assume such Employee Program; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all material correspondence between the transactions contemplated by this Agreement Company and any state or any agreement or document executed pursuant heretofederal agency within the last six years with respect to such Employee Program.
(f) Each Employee Program required to be listed on Schedule 2.19 may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program and no provision of any Employee Program document has failed to effectively reserve the right of the Company or the ERISA Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an ERISA Affiliate has complied with the applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this Section 2.17section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 2.17 attached hereto 2.25 sets forth a description list of every Employee Program (as defined below) that ------------- has been maintained (as such term is further defined below) by Seller the Company or an Affiliate at any time during the three (3) years prior to six- year period ending on the date hereofClosing Date.
(b) Each Employee Program listed on Schedule 2.17 hereto that which has ever been maintained by the Company or an Affiliate and which has been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither the Company nor any Affiliate knows, nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to any the Employee Program Programs that has have ever been maintained by Sellerthe Company or any Affiliate. With respect to any Employee Programs now or heretofore Program ever maintained by Sellerthe Company or any Affiliate, there has occurred been no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement, or (iii) non-deductible contribution, which, in the case of either any of (i) or ), (ii), or (iii), could result subject the Company or any Affiliate to liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller, or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither Seller, the Company nor any of its affiliates has ever Affiliate (i) has ever maintained any Employee Program which has been subject to title IV of ERISA or Code Section 412, including, but not limited to, any Multiemployer Plan or (ii) has ever provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISA) or has ever promised to provide such post-termination benefits or benefits.
(iie) maintained an With respect to each Employee Program that is subject to Title IV of ERISAmaintained by the Company within the six years preceding the Closing Date, Section 401(a) or Section 412 complete and correct copies of the Codefollowing documents (if applicable to such Employee Program) have previously been delivered to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended to the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) all IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto filed by the Company in the last three (3) years; (iv) all actuarial valuation reports completed with respect to assume such Employee Program filed by the Company in the last three (3) years; (v) the summary plan description for such Employee Program (or perform other descriptions of such Employee Program provided to employees) and all modifications thereto; (vi) any obligation thereunder as a result of insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the transactions contemplated by this Agreement or any agreement or document executed pursuant heretolast three (3) years.
(f) Each Employee Program required to be listed on Schedule 2.25 may ------------- be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program, and no employee communications or provision of any Employee Program document purports to limit the Company's or any Affiliate's right to so amend, terminate or otherwise modify such Employee Program.
(g) Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of federal and state securities laws including (without limitation, if applicable) the requirements that the offering of interests in such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied with the applicable notification and other applicable requirements of the Health Insurance Portability and Accounting Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, and the Mental Health Parity Act of 1996.
(i) For purposes of this Section 2.17section:
Appears in 1 contract
Sources: Merger Agreement (Mac-Gray Corp)
Employee Benefit Programs. (a) The Employee Programs maintained by Seller or an ERISA Affiliate or with respect to which Seller or an ERISA Affiliate has or may have liabilities are referred to herein as the “Seller Employee Programs”. Section 3.12(a) of the Seller Disclosure Schedule 2.17 attached hereto sets forth a description list of every each Seller Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller at any time during the three (3) years prior to the date hereofProgram.
(b) Each Seller Employee Program listed on Schedule 2.17 hereto that has been which is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the Internal Revenue Service (the “IRS”) IRS regarding its qualification under such section and has, in factto the Knowledge of Seller, been qualified under the applicable section of the Code from the effective date of such Seller Employee Program through and including the Closing Date (or, if earlier, the date that all of such Seller Employee Program’s assets were distributed). No To the Knowledge of Seller, no event or omission has occurred that which would cause any Seller Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated Section (including without the imposition of any redemption feelimitation Code Sections 105, surrender charge or comparable liability125, 401(a) and 501(c)(9)). No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There has not been Neither Seller nor any ERISA Affiliate knows of any failure of any party to comply in all material respects with any laws applicable with respect to any the Seller Employee Program that has been maintained by SellerPrograms. With respect to any Seller Employee Programs now or heretofore maintained by SellerProgram, there has occurred been no (i) “prohibited transaction,” as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) ERISA or Code Section 4975 or 4975, (ii) breach failure to comply with any provision of any duty under ERISA or ERISA, other applicable law Law, or any agreement, or (iii) non deductible contribution, which, in the case of either any of (i) or ), (ii), could result or (iii), would subject Seller or any ERISA Affiliate to material liability either directly or indirectly in (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, penalties or other liability to Buyer, Seller or any affiliate (as defined below)other loss or expense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge Knowledge of Seller, threatened with respect to any such Seller Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable Law) with respect to all Seller Employee Programs Programs, for all periods prior to the Closing Date in all material respects, either have been made or have been accrued.
(d) Neither Seller, Seller nor any ERISA Affiliate has within the past six years maintained an Employee Program subject to Title IV of its affiliates ERISA, Section 412 of the Code, Section 302 of ERISA or a Multiemployer Plan. None of the Seller Employee Programs has ever (i) in the past six years provided health care or any other non-pension benefits to any employees after their employment was is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or state continuation laws or benefits in the nature of severance pay pursuant to an employment, severance or similar agreement) or has ever been promised to provide such post-termination benefits benefits.
(e) With respect to each Seller Employee Program, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered or made available to Buyer: (iii) maintained an all documents embodying such Seller Employee Program, and any funding medium for the Seller Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or opinion letter, and any Multiemployer Planapplications for determination or approval subsequently filed with the IRS; (iii) the most recently filed IRS Forms 5500, with all applicable schedules and accountants’ opinions attached thereto; (iv) the most recent actuarial valuation report completed with respect to such Seller Employee Program; (v) the summary plan description for such Seller Employee Program (or other descriptions of such Seller Employee Program provided to employees) and all subsequent modifications thereto; (vi) any insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Seller Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all material correspondence to and from any state or federal agency within the last three years with respect to such Seller Employee Program.
(ef) No Each Seller Employee Program will obligate Buyer may be amended, terminated, or otherwise modified by Seller in accordance with its terms.
(g) Except as set forth in Section 3.12(g) of the Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries is a party to assume any employment or perform consulting agreements with any obligation thereunder current or former manager, director, officer, or employee which required payment of cash compensation in the calendar year ended December 31, 2010 in excess of $100,000 or is expected to require payment of cash compensation in the calendar year ending December 31, 2011 in excess of $100,000.
(h) Except with respect to the agreements disclosed or described generally in Section 3.12(h) of the Seller Disclosure Schedule or as contemplated by this Agreement, neither Seller nor any of its Subsidiaries is a result party to any oral or written (i) agreement with any stockholders, director, or employee of Seller or any of its Subsidiaries (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Seller or any of its Subsidiaries of the nature of any of the transactions contemplated by this Agreement or (B) providing any term of employment or compensation guarantee, or (C) severance benefits after the termination of employment of such director or employee; or (ii) agreement or document executed pursuant heretoplan binding Seller or any of its Subsidiaries, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated by this Agreement.
(fi) Each Employee Program that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been operated and maintained in material operational and documentary compliance with Section 409A of the Code since January 1, 2009. No Seller Stock Option is subject to Section 409A of the Code.
(j) For purposes of this Section 2.17section:
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Employee Benefit Programs. (a) Section 3.22 of the Disclosure Schedule 2.17 attached hereto sets forth a description list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by Seller Prolab at any time during the three (3) years prior to the date hereofClosing Date.
(b) Each Except as set forth in Section 3.22 of the Disclosure Schedule, each Employee Program listed on Schedule 2.17 hereto that which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the Internal Revenue Service (the “"IRS”") regarding its qualification under such section and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred that which would cause any such Employee Program to lose its qualification Qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) There Except as set forth in Section 3.22 of the Disclosure Schedule, there has not been any failure of any party to comply with any laws applicable with respect to any the Employee Program that has been maintained by SellerPrograms. With respect to any Employee Programs now or heretofore maintained by SellerProgram, there has occurred no (i) “"prohibited transaction” ," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”) "), or Code Section 4975 of the Code, or (ii) breach of any duty under ERISA or other applicable law which(including, in the case of either of (i) without limitation, any health care continuation requirements or (iiany other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result result, directly or indirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to Buyer, Seller Prolab or any affiliate Affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the best knowledge of Sellerthe Stockholders, threatened with respect to any such Employee Program. All payments and/or contributions required to have been made with respect to all Employee Programs either have been made or have been accrued.
(d) Neither SellerWith respect to each Employee Program within the three years preceding the date hereof, nor any complete and correct copies of its affiliates has ever the following documents (if applicable to such Employee Program) have previously been delivered to Natrol: (i) provided health care all documents embodying or governing such Employee Program, and any other non-pension benefits to any employees after their employment was terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits or (ii) maintained an funding medium for the Employee Program that is subject to Title IV of ERISA, Section 401(a) or Section 412 of the Code, (including, without limitation, any Multiemployer Plan.
trust agreements) as they may have been amended through the date hereof; (eii) No Seller the most recent IRS determination or approval letter with respect to such Employee Program will obligate Buyer under Code Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to assume or perform employees) and all modifications thereto; (v) any obligation thereunder as a result of the transactions contemplated by this Agreement or insurance policy (including any agreement or document executed pursuant hereto.
(ffiduciary liability insurance policy) For purposes of this Section 2.17:related to such Employee Program;
Appears in 1 contract