Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule sets forth a list of every Employee Program that has been maintained by the Company or an Affiliate at any time during the three (3) year period ending on the Closing Date. (b) Each Employee Program 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 IRS regarding its qualification under such section (or is within the applicable IRS remedial amendment period related thereto) 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). To the knowledge of the Company, no event or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth in Section 4.18(b) of the Company Disclosure Schedule, 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) 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 the Employee Programs that have ever been maintained by the Company or any Affiliate that would result in a material liability. With respect to any Employee Program ever maintained by the Company or any Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company'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 accrued (and all such unpaid but accrued amounts are described in Section 4.18 of the Company Disclosure Schedule). (d) Neither the Company nor any Affiliate has ever 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. 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 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. (e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration. (f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 2 contracts
Sources: Merger Agreement (Ostex International Inc /Wa/), Merger Agreement (Inverness Medical Innovations Inc)
Employee Programs. (a) Section 4.18 Schedule 4.13 of the Company Buyer Disclosure Schedule sets forth a list of every material Employee Program that has been currently maintained by Buyer or any of its ERISA Affiliates, or with respect to which Buyer or any of its ERISA Affiliates has or may have any liability (including by reason of being or having been an ERISA Affiliate with any other Person) (the Company or an Affiliate at any time during the three (3) year period ending on the Closing Date“Buyer Employee Programs”).
(b) Each material Buyer Employee Program which has ever been maintained by the Company or an Affiliate and which has been that 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 IRS regarding its qualification under with respect to such section (qualification, or is within may rely on an opinion letter issued by the applicable IRS remedial amendment period related thereto) and haswith respect to a prototype plan adopted in accordance with the requirements for such reliance, in fact, been qualified under or has time remaining for application to the applicable section IRS for a determination of the Code from the effective date qualified status of such Buyer Employee Program through and including for any period for which such Buyer Employee Program would not otherwise be covered by an IRS determination and, to the Closing Date (or, if earlier, the date that all Knowledge of such Employee Program's assets were distributed). To the knowledge of the CompanyBuyer, no event or omission has occurred which that would cause any Company Employee Program to lose its such qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits require corrective action under the applicable Code Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth in Section 4.18(b) of the Company Disclosure Schedule, each asset held under any such IRS 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 ProgramPlans Compliance Resolution System.
(c) Neither Each Buyer Employee Program is, and has been established, operated, and administered in all material respects in compliance with its terms and with applicable laws and regulations, including without limitation ERISA, the Company nor any Affiliate knowsCode, nor should any and the Affordable Care Act. No Buyer Employee Program is, or within the past six years has been, the subject of them reasonably knowan application or filing under a government sponsored amnesty, voluntary compliance, or similar program, or been the subject of any failure of self-correction under any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would result in a material liability. With respect to any Employee Program ever maintained by the Company or any Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expensesuch program. No litigation or governmental administrative proceeding (or investigation) proceeding, audit or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the Company's knowledge Knowledge of Buyer, threatened with respect to any Buyer Employee Program or any fiduciary or service provider thereof, and, to the Knowledge of Buyer, there is no reasonable basis for any such Employee Programlitigation or proceeding. 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 Buyer Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been timely made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 accordance with the terms of the Company Disclosure Schedule)applicable Buyer Employee Program and applicable law.
(d) Neither the Company Buyer nor any Affiliate of its ERISA Affiliates has ever maintained an Employee Program maintained, contributed to, or been required to contribute to or had any liability (whether contingent or otherwise) or obligation with respect to: (i) any employee benefit plan that is or was subject to Title IV of ERISA. Neither , Section 412 of the Company nor any Affiliate has ever contributed to Code, or been obligated to contribute to Section 302 of ERISA, (ii) a Multiemployer Plan Plan, (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA), and neither the Company nor any Affiliate of its ERISA Affiliates has ever had incurred any collectively bargained employees. None liability under Title IV of the Employee Programs ever maintained by the Company or any Affiliate ERISA that has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefitsnot been paid in full.
(e) With respect to each any Buyer Employee Program maintained by that is subject to Title IV of ERISA or Section 412 of the Company within the three (3) years preceding the Closing DateCode or Section 302 of ERISA, complete and correct copies none of the following documents (if applicable to such Employee Program) have been made available to Parent has occurred or its representativesexisted, nor will any of the following occur or exist as a result of the transactions contemplated by this Agreement: (i) all documents embodying or governing such Employee Program, and a failure to make on a timely basis any funding medium for the Employee Program contribution (including, without limitation, trust agreementsany installment) as they may have been amended to required under Section 302 or 303 of ERISA or Section 412 of the date hereofCode; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under filing of an application for a waiver described in Section 412(c) of the Code and Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS303 of ERISA; (iii) a “reportable event” within the three (3) most recently filed IRS Forms 5500meaning of ERISA Section 4043, with all applicable schedules and accountants' opinions attached theretofor which the notice requirement is not waived by the regulations thereunder; (iv) the three (3) most recent actuarial valuation reports completed with respect an event or condition which presents a material risk of a plan termination or any other event that may cause Buyer or any ERISA Affiliate to such Employee Programincur liability or have a lien imposed on its assets under Title IV of ERISA; or (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 “unfunded benefit liabilities” within the last three (3) years with respect to such Employee Program, other than correspondence in the ordinary course meaning of administrationERISA Section 4001(a)(18).
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 2 contracts
Sources: Merger Agreement (Bar Harbor Bankshares), Merger Agreement (Bar Harbor Bankshares)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule SCHEDULE 4.20 sets forth a list of every Employee Program that (as defined below) maintained by the Company or any of its Subsidiaries at any time during the six-year period ending on the Closing Date or with respect to which a liability of the Company or any of its Subsidiaries exists. Except as set forth on SCHEDULE 4.20, each Employee Program (other than a Multiemployer Plan (as defined below)) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section (Section or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective Company's knowledge, nothing has occurred that would adversely affect such qualification since the date of such letter or application for a determination or approval letter has been timely made and, to the Company's knowledge, no reason exists why a favorable determination or approval shall not be granted. Except as set forth on SCHEDULE 4.20, the Company and its Subsidiaries do not know of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the Company or any of its Subsidiaries, and no such failure will result from completion of the transactions contemplated hereby. Except as set forth on SCHEDULE 4.20 with respect to any Employee Program ever maintained by the Company or any of its Subsidiaries, there has been no "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, or breach of any duty under ERISA or other applicable law or any agreement which in any such case could subject the Company or any of its Subsidiaries to material liability either directly or indirectly (including, without limitation, through and including the Closing Date any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or Government administrative proceeding (or, if earlier, the date that all of or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program's assets were distributedProgram (other than a Multiemployer Plan). To the knowledge of the Company, no No event or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth in Section 4.18(b) of the Company Disclosure Schedule, each 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) None of the Code) Company or its Subsidiaries have incurred any liability under Title IV of ERISA which has occurred with respect not been paid in full prior to any Employee Program.
(c) Neither the Closing. None of the Company nor any Affiliate knows, nor should or any of them reasonably knowits Subsidiaries participates currently or has ever participated in or is required currently or has ever been required to contribute to or otherwise participate in any plan, program or arrangement subject to Title IV of ERISA or Code Section 412. None of the Company or its Subsidiaries participates currently or has ever participated in or is required currently or has ever been required to contribute to or otherwise participate in any failure Multiemployer Plan (as defined below). Except as disclosed on SCHEDULE 4.20, none of any party to comply with any laws applicable with respect to the Employee Programs that have ever been which is a welfare plan maintained by the Company or any Affiliate that would result in a material liability. With respect to any Employee Program ever maintained by the Company or any Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company'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 accrued (and all such unpaid but accrued amounts are described in Section 4.18 of the Company Disclosure Schedule).
(d) Neither the Company nor any Affiliate has ever 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. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided its Subsidiaries provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) . Each Employee Program required to be listed in Section 4.18 of the Company Disclosure Schedule on SCHEDULE 4.20 may be amended, terminated, or otherwise modified by the Company or its Subsidiaries 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 its Subsidiaries 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 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 sectionSection 4.20:
Appears in 2 contracts
Sources: Securities Purchase Agreement (Metretek Technologies Inc), Securities Purchase Agreement (DDJ Capital Management LLC)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule SCHEDULE 4.10 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate at any time during the five-year period ending on the Closing Date or with respect to which a liability of the Company or an Affiliate (as defined below) exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) five-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on SCHEDULE 4.10, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, no knowledge of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (a) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived Under 29 C.F.R. Part 2615) or (b) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing, have been timely made. Except as described on SCHEDULE 4.10, no Employee Program maintained by the Company or an 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, either have been made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 of . With respect to Multiemployer Plans maintained by the Company Disclosure Schedule).
(d) Neither or any Affiliate, SCHEDULE 4.10 states the aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company nor or any Affiliate has ever maintained an Employee Program subject to Title IV of ERISAif there were a withdrawal from any such plan as determined by the most recent withdrawal liability calculation prepared by such plan. 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. None Except as disclosed on SCHEDULE 4.10, none of the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 5.10 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate at any time during the six-year period ending on the Closing Date or with respect to which a liability, contingent or otherwise, of the Company or an Affiliate exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (section, or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code has not yet expired with respect to such Employee Program and, to the knowledge of the Company, nothing has occurred that would adversely affect such qualification from the effective date of such Employee Program through letter or application (which was timely made) for a determination or approval letter, and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 5.10, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, does not know of any failure of any party to comply with any laws Laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, Law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any liability under Title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to Title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (ii) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability, contingent or otherwise, or have a material Lien imposed on its assets under Title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable lawLaw) with respect to all Employee Programs subject to Title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing DateClosing, either have been made or have been accrued (and all such unpaid but accrued amounts are timely made. Except as described in Section 4.18 of on Schedule 5.10, no Employee Program maintained by the Company Disclosure Schedule).
(d) Neither the Company nor any or an Affiliate has ever maintained an Employee Program and subject to Title IV of ERISAERISA (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 With respect to Multiemployer Plans maintained by the Company nor or any Affiliate, Schedule 5.10 states the aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company or any Affiliate has ever contributed to or been obligated to contribute to if there were a Multiemployer Plan and neither withdrawal from any such plan as determined by the Company nor any Affiliate has ever had any collectively bargained employeesmost recent withdrawal liability calculation prepared by such plan. None Except as disclosed on Schedule 5.10, none of the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-post- termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract
Sources: Securities Purchase Agreement (Moore Capital Management Inc /New)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule sets forth a list of every 2.19(a) hereto lists each Employee Program that has been maintained by the Company or an Affiliate at any time during the three (3) year period ending on the Closing Dateas defined below).
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has been 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 IRS regarding its qualification under such section (or is within the applicable IRS remedial amendment period related thereto) section, and has, has in fact, 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). To the knowledge of the Company, no No event or omission has occurred which would reasonably be expected to 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 (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth in Section 4.18(b) of the Company Disclosure Schedule, 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) section of the Code) has occurred with respect to any Employee Program.
(c) Neither Each Employee Program other than a Foreign Plan has been established and administered in accordance with its terms in all material respects, and is in compliance in all material respects with the Company nor any Affiliate knowsapplicable provisions of ERISA, nor should any of them reasonably know, of any failure of any party to comply with any laws the Code and other applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would result in a material liabilityLaws and Regulations. With respect to any Employee Program ever maintained by the Company or any AffiliateProgram, there has been occurred no (i) "non-exempt “prohibited transaction," ” as defined in Section 406 of ERISA or Code Section 49754975 of the Code, (ii) failure to comply with or breach of any provision of ERISA, fiduciary duty under ERISA or other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to liability either directly or indirectly law (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, health care continuation requirements or any other loss tax law requirements, or expense. conditions to favorable tax treatment, applicable to such plan), which would reasonably be expected to result, directly or indirectly, in any taxes or penalties or other liabilities to Purchaser, and none of the Sellers or the BlueMountain Operating Companies or any of its ERISA Affiliates has engaged in any such “prohibited transaction.” No litigation litigation, arbitration, or governmental administrative proceeding (or or, to the Knowledge of the BlueMountain Operating Companies, investigation) or other proceeding (other than those relating to routine claims for benefitsbenefits or domestic relations orders) is pending or or, to the Company's knowledge Knowledge of the BlueMountain Operating Companies, 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 accrued (and all such unpaid but accrued amounts are described in Section 4.18 of the Company Disclosure Schedule).
(d) Neither None of the Company nor any Affiliate BlueMountain Operating Companies, the BlueMountain Subsidiaries or their ERISA Affiliates (as defined below) (i) has ever maintained an any employee benefit plan, program or arrangement (including, without limitation, the Employee Program Programs) which has been subject to Title IV of ERISA. Neither the Company nor ERISA (including, but not limited to, any Affiliate Multiemployer Plan (as defined below)) or (ii) 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 employeesliability to any Multiemployer Plan. None of the Employee Programs ever maintained by is a multiple employer pension plan or a multiple employer welfare arrangement (within the Company meaning of section 3(40) of ERISA). Neither the BlueMountain Operating Companies nor the BlueMountain Subsidiaries is obligated to provide or has any Affiliate has ever provided liability with respect to any health care or any other non-pension life insurance benefits to any employees after their employment is terminated (other than (i) as required by Part part 6 of Subtitle subtitle B of Title I of ERISAERISA or similar state or local Laws and Regulations, (ii) benefits through the end of the month of termination of employment, or has ever promised to provide such post-termination benefits(iii) a subsidy provided in an employment agreement or separation agreement for all or a portion of the premium payment for coverage required by part 6 of subtitle B of Title I of ERISA or similar state or local Laws and Regulations).
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to Parent or its representativesPurchaser: (i) all material 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 hereofamended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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; (viiv) any insurance policy (including any fiduciary liability insurance policy or fidelity bondpolicy) related to such Employee Program; and (viiv) any registration statement or other filing made pursuant documents evidencing any loan to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the last three (3) years with respect to such an Employee Program, other than correspondence in the ordinary course of administrationProgram that is a leveraged employee stock ownership plan.
(f) Each Employee Program required to be listed in Section 4.18 None of the Company Disclosure Schedule may be amendedBlueMountain Operating Companies, terminated, the BlueMountain Subsidiaries or otherwise modified by the Company BlueMountain Funds is in default with respect 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 material term or provision condition of any Employee Program document has failed to effectively reserve Program, nor will the right of the Company Closing (or the Affiliate to so amendtransactions contemplated hereby or thereby) result in any such default, terminate including, without limitation, after the giving of notice, lapse of time or otherwise modify such Employee Programboth.
(g) Each None of the assets of any Employee Program ever maintained by are invested in securities issued by, or real property leased 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" lawsBlueMountain Operating Companies.
(h) Each There have been no acts or omissions by the BlueMountain Operating Companies or any ERISA Affiliates which have given rise to or may give rise to material interest, fines, penalties, taxes or related charges under section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code for which the BlueMountain Operating Companies or any ERISA Affiliates may be liable or under Section 409A of the Code for which the BlueMountain Operating Companies or any ERISA Affiliates or any participant in any Employee Program ever maintained by that is a nonqualified deferred compensation plan (within the Company or an Affiliate has complied in all material respects with the applicable notification and other applicable requirements meaning of section 409A 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 1996Code) may be liable. The BlueMountain Operating Companies, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:each Employee Program that is a
Appears in 1 contract
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 4.10 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate at any time during the six- year period ending on the Closing Date or with respect to which a liability of the Company or an Affiliate exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 4.10, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, does not know of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (ii) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing, have been timely made. Except as described on Schedule 4.10, no Employee Program maintained by the Company or an 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, either have been made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 of . With respect to Multiemployer Plans maintained by the Company Disclosure Schedule).
(d) Neither or any Affiliate, Schedule 4.10 states the aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company nor or any Affiliate has ever maintained an Employee Program subject to Title IV of ERISAif there were a withdrawal from any such plan as determined by the most recent withdrawal liability calculation prepared by such plan. 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. None Except as disclosed on Schedule 4.10, none of the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies . For purposes of the following documents (if applicable to such Employee Program) have been made available to Parent or its representativesthis section: (i) all documents embodying or governing such "Employee Program" means (A) any employee benefit plan within the meaning of Section 3(3) of ERISA and employee benefit plans (such as foreign or excess benefit plans) which are not subject to ERISA, and (B) any funding medium for the Employee Program (includingstock option plans, without limitationbonus or incentive award plans, trust severance pay policies or agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), deferred compensation arrangements, supplemental income arrangements, vacation plans, and any applications for determination or approval subsequently filed with the IRS; all other employee benefit plans, agreements, and arrangements not described in (iiiA) the three above, and (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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; (viC) any insurance policy (including any fiduciary liability insurance policy or fidelity bond) related trust used 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 fund benefits under the Securities Act and/or state "Blue Sky" laws.
(h) Each Employee Program ever foregoing 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, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998any Affiliate.
(i) For purposes of this section:
Appears in 1 contract
Sources: Stock Purchase Agreement (FMR Corp)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 4.12 sets forth a list of ----------------- ------------- every Employee Program that maintained by the Company or any Current Affiliate at any time during the six-year period ending on the First Closing Date or with respect to which a liability of the Company or an ERISA Affiliate exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the First Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 4.12, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, does not know ------------- of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that Current Affiliate, except for failures which would result in a not subject the Company to any material liability, and no such failure will result from completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an ERISA Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any liability under Title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to Title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (ii) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under Title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to Title IV of ERISA ever maintained by the Company or any ERISA Affiliate, for all periods prior to the Closing DateClosing, either have been made or have been accrued (and all such unpaid but accrued amounts are timely made. Except as described in Section 4.18 of the Company Disclosure Schedule).
(d) Neither the Company nor any Affiliate has ever maintained an on Schedule 4.12, no Employee Program maintained by the ------------- Company or an ERISA Affiliate and subject to Title IV of ERISA. Neither the Company nor any Affiliate has ever contributed to or been obligated to contribute to ERISA (other than a Multiemployer Plan and neither Plan) has any "unfunded benefit liabilities" within the Company nor any Affiliate has ever had any collectively bargained employeesmeaning of ERISA Section 4001(a)(18), as of each Closing Date. None of the Employee Programs ever With respect to Multiemployer Plans maintained by the Company or any ERISA Affiliate, Schedule -------- 4.12 states the aggregate amount of withdrawal liability or other termination ---- liability that would be incurred by the Company or any ERISA Affiliate has ever provided if there were a withdrawal from any such plan as determined by the most recent withdrawal liability calculation prepared by such plan. Except as disclosed on Schedule 4.12, none of the Employee Programs which is a ------------- welfare plan maintained by the Company or any ERISA Affiliate provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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 sectionsubsection:
Appears in 1 contract
Sources: Securities Purchase Agreement (Triumph Connecticut LTD Partnership)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 4.12 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate at any time during the six-year period ending on the First Closing Date or with respect to which a liability of the Company or an ERISA Affiliate exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the First Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 4.12, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, does not know of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that Current Affiliate, except for failures which would result in a not subject the Company to any material liability, and no such failure will result from completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an ERISA Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). All payments and/or contributions required The Company and its Current Affiliates have not incurred any liability under Title IV of ERISA which has not been paid in full prior to have been made the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "accumulated funding deficiency" (under the provisions of any agreements whether or other governing documents or applicable lawnot waived) with respect to all any Employee Programs Program ever maintained by the Company or any Affiliate, for all periods prior ERISA Affiliate and subject to the Closing Date, either have been made Code Section 412 or have been accrued (and all such unpaid but accrued amounts are described in ERISA Section 4.18 of the Company Disclosure Schedule).
(d) Neither the Company nor 302. With respect to any Affiliate has ever maintained an Employee Program subject to Title IV of ERISA. Neither , there has been no (and 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. None of the Employee Programs ever maintained transactions contemplated by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISAthis Agreement will not result in any) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 "reportable event," within the last three (3) years with respect to such Employee Program, other than correspondence in the ordinary course meaning of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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) ERISA For purposes of this sectionsubsection:
Appears in 1 contract
Sources: Securities Purchase Agreement (Ascent Pediatrics Inc)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule SCHEDULE 4.11 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate (as defined below) at any time during the five-year period ending on the Closing Date or with respect to which a liability of the Company or an Affiliate (as defined below) exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) five-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on SCHEDULE 4.11, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, no knowledge of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). Neither the Company nor any of its Current Affiliates have incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (a) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (b) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing, have been timely made. Except as described on SCHEDULE 4.11, no Employee Program maintained by the Company or an 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, either have been made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 of . With respect to Multiemployer Plans maintained by the Company Disclosure Schedule).
(d) Neither or any Affiliate, SCHEDULE 4.11 states the aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company nor or any Affiliate has ever maintained an Employee Program subject to Title IV of ERISAif there were a withdrawal from any such plan as determined by the most recent withdrawal liability calculation prepared by such plan. 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. None Except as disclosed on SCHEDULE 4.11, none of the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 5.10 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate at any time during the six-year period ending on the Closing Date or with respect to which a liability, contingent or otherwise, of the Company or an Affiliate exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (section, or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code has not yet expired with respect to such Employee Program and, to the knowledge of the Company, nothing has occurred that would adversely affect such qualification from the effective date of such Employee Program through letter or application (which was timely made) for a determination or approval letter, and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 5.10, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, does not know of any failure of any party to comply with any laws Laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, Law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any liability under Title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to Title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (ii) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability, contingent or otherwise, or have a material Lien imposed on its assets under Title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable lawLaw) with respect to all Employee Programs subject to Title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing DateClosing, either have been made or have been accrued (and all such unpaid but accrued amounts are timely made. Except as described in Section 4.18 of on Schedule 5.10, no Employee Program maintained by the Company Disclosure Schedule).
(d) Neither the Company nor any or an Affiliate has ever maintained an Employee Program and subject to Title IV of ERISAERISA (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 With respect to Multiemployer Plans maintained by the Company nor or any Affiliate, Schedule 5.10 states the aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company or any Affiliate has ever contributed to or been obligated to contribute to if there were a Multiemployer Plan and neither withdrawal from any such plan as determined by the Company nor any Affiliate has ever had any collectively bargained employeesmost recent withdrawal liability calculation prepared by such plan. None Except as disclosed on Schedule 5.10, none of the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-post- termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract
Sources: Securities Purchase Agreement (Headway Corporate Resources Inc)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule sets forth a list of SCHEDULE 3.24 hereto lists every Employee Program that has been maintained by the Company or an Affiliate at any time during the three (3) year period ending on the Closing Dateas defined below).
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has been 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 IRS regarding its qualification under such section (or is within the applicable IRS remedial amendment period related thereto) section, and has, has in fact, fact been qualified in all material respects 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). To the knowledge Knowledge of the Company▇▇▇▇▇▇ Companies, no event or omission has occurred which would could reasonably be expected to 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 (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth in Section 4.18(b) of the Company Disclosure Schedule, 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 Programsection.
(c) Neither Each Employee Program has been established and administered in accordance with its terms in all material respects, and is in compliance in all material respects with the Company nor any Affiliate knowsapplicable provisions of ERISA, nor should any of them reasonably know, of any failure of any party to comply with any laws the Code and other applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would result in a material liabilityLaws and Regulations. With respect to any Employee Program ever maintained by the Company or any AffiliateProgram, there has been occurred no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 49754975 of the Code, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to liability either directly or indirectly law (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, health care continuation requirements or any other loss tax law requirements, or expenseconditions to favorable tax treatment, applicable to such plan), which could reasonably be expected to result, directly or indirectly, in any material taxes, penalties or other liabilities to FAI, FAID, either of the LLCs or AMG. No litigation litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the Company's knowledge Knowledge of the ▇▇▇▇▇▇ Companies, threatened with respect to any such Employee Program. All payments and/or contributions required Program and no facts or circumstances exist that could reasonably be expected to have been made (under the provisions of give rise to any agreements such litigation, arbitration 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 accrued (and all such unpaid but accrued amounts are described in Section 4.18 of the Company Disclosure Schedule)proceeding.
(d) Neither None of the Company nor FAI, FAID or the WY LLC or any ERISA Affiliate (as defined below) (i) has ever maintained an any employee benefit plan, program or arrangement (including, without limitation, the Employee Program Programs) which has been subject to Title IV of ERISA. Neither the Company nor ERISA (including, but not limited to, 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. None of the Employee Programs ever maintained by the Company (as defined below)) or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment 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.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to Parent or its representativesAMG: (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 hereofamended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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; (viv) any insurance policy (including any fiduciary liability insurance policy or fidelity bondpolicy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials requested by AMG and reasonably necessary for AMG to perform 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 (3) years of its responsibilities with respect to such any Employee ProgramProgram subsequent to the Closing (including, other than correspondence in the ordinary course of administrationwithout limitation, health care continuation requirements).
(f) Each Employee Program required to be listed in Section 4.18 of the Company Disclosure Schedule may be amended, terminated, modified or otherwise modified by revised FAI, FAID and the Company to the greatest extent permitted by applicable lawWY LLC, 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 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:
Appears in 1 contract
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 4.10 sets forth a list of every ----------------- ------------- Employee Program that maintained by the Company or any Current Affiliate at any time during the two-year period ending on the Closing Date or with respect to which a liability of the Company or an Affiliate (as defined below) exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) two-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 4.10, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, no knowledge of any failure of any party to ------------- comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of the Company's knowledge , threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any material liability under title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (a) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (b) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under title IV of ERISA. All material payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing DateClosing, either have been made or have been accrued (and all such unpaid but accrued amounts are timely made. Except as described in Section 4.18 of on Schedule 4.10, no ------------- Employee Program maintained by the Company Disclosure Scheduleor an 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).
(d) . Neither the Company nor any Affiliate has ever 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 employeesPlan. 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 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.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule 4.10 sets forth a list of every Employee ----------------- ------------- Program that maintained by the Company or any Current Affiliate at any time during the five-year period ending on the Closing Date or with respect to which a liability of the Company or an Affiliate (as defined below) exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) five-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on Schedule 4.10, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, no knowledge of any failure of any party to ------------- comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). The Company and its Current Affiliates have not incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (a) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (b) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing, have been timely made. Except as described on Schedule 4.10, no Employee Program maintained by ------------- the Company or an 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, either have been made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 of . With respect to Multiemployer Plans maintained by the Company Disclosure Schedule).
(d) Neither or any Affiliate, Schedule 4.10 states the ------------- aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company nor or any Affiliate has ever maintained an Employee Program subject to Title IV if there were a withdrawal from any such plan as determined by the most recent withdrawal liability calculation prepared by such plan. Except as disclosed on Schedule 4.10, none 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. None of ------------- the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule SCHEDULE 4.12 sets forth a list of every Employee Program that (as defined below) maintained by the Company, any of its Subsidiaries or any Current Affiliate (as defined below) at any time during the six-year period ending on the Closing Date or with respect to which a liability of the Company, any of its Subsidiaries or an ERISA Affiliate (as defined below) exists. Except as set forth on SCHEDULE 4.12, each Employee Program (other than a Multiemployer Plan (as defined below)) which has been maintained by the Company or an Affiliate at any time during the three (3) six-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on SCHEDULE 4.12, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, does not know of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company Company, any of its Subsidiaries or any Current Affiliate that would or any ERISA Affiliates, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With Except as set forth on SCHEDULE 4.12, with respect to any Employee Program ever maintained by the Company Company, any of its Subsidiaries or any an ERISA Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate of its Subsidiaries to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). All payments and/or contributions required to have been made (under None of the provisions of any agreements Company, its Subsidiaries, or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company its Current Affiliates or any Affiliate, for all periods ERISA Affiliates have incurred any liability under Title IV of ERISA which has not been paid in full prior to the Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 Closing. None of the Company Disclosure Schedule).
(d) Neither Company, any of its Subsidiaries or any of its Current Affiliates or any ERISA Affiliates participates currently or has during the Company nor six-year period ending on the Closing Date participated in or is required currently or has during the six-year period ending on the Closing Date been required to contribute to or otherwise participate in any Affiliate has ever maintained an Employee Program plan, program or arrangement subject to Title IV of ERISA. Neither None of the Company nor Company, its Subsidiaries, or its Current Affiliates or any Affiliate ERISA Affiliates participates currently or has ever contributed to during the six-year period ending on the Closing Date participated in or is required currently or has during the six-year period ending on the Closing Date been obligated required to contribute to a or otherwise participate in any Multiemployer Plan and neither the Company nor any Affiliate has ever had any collectively bargained employees(as defined below). None Except as disclosed on SCHEDULE 4.12, none of the Employee Programs ever which is a welfare plan maintained by the Company Company, any of its Subsidiaries or any ERISA Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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 sectionsubsection:
Appears in 1 contract
Sources: Securities Purchase Agreement (Outsource International Inc)
Employee Programs. (a) Section 4.18 of the Company Disclosure Schedule SCHEDULE 3.11 sets forth a list of every Employee Program that maintained by the Company or any Current Affiliate (as defined below) at any time during the five-year period ending on the Closing Date or with respect to which a liability of the Company or an Affiliate (as defined below) exists. Each Employee Program (other than a Multiemployer Plan) which has been maintained by the Company or an Affiliate at any time during the three (3) five-year period ending on the Closing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate Date and which has been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service regarding its qualification under such section (or is within the applicable IRS remedial amendment period related theretounder Section 401(b) and has, in fact, been qualified under the applicable section of the Code from has not yet expired with respect to such Employee Program and, to the effective knowledge of the Company, nothing has occurred that would adversely affect such qualification since the date of such Employee Program through letter or application for a determination or approval letter has been timely made, and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). To to the knowledge of the Company, no event reason exists why a favorable determination or omission has occurred 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 Section (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9))approval shall not be granted. Except as set forth in Section 4.18(b) of on SCHEDULE 3.11, the Company Disclosure Schedule, 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) Neither the Company nor any Affiliate knows, nor should any of them reasonably know, no knowledge of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the Company or any Affiliate that would Current Affiliate, and no such failure will result in a material liabilityfrom completion of the transactions contemplated hereby. With respect to any Employee Program ever maintained by the Company or any an Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii) failure to comply with or breach of any provision of ERISA, duty under ERISA or other applicable law, law or any agreement, or (iii) non-deductible contribution, which, agreement which in the any such case of any of (i), (ii), or (iii), could subject the Company or any Affiliate to material liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or to the Company's knowledge threatened with respect to any such Employee ProgramProgram (other than a Multiemployer Plan). Neither the Company nor any of its Current Affiliates have incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. Neither the Company nor any of its Current Affiliates is liable for any material "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 subject to title IV of ERISA, there has been no (and the transactions contemplated by this Agreement will not result in any) (a) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder (for which the notice requirement is not waived under 29 C.F.R. Part 2615) or (b) other event or condition which presents a material risk of plan termination or any other event that may cause the Company or any Current Affiliate to incur material liability or have a material Lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made by the Company and its Current Affiliates (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs subject to title IV of ERISA ever maintained by the Company or any Affiliate, for all periods prior to the Closing, have been timely made. Except as described on SCHEDULE 3.11, no Employee Program maintained by the Company or an 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, either have been made or have been accrued (and all such unpaid but accrued amounts are described in Section 4.18 of . With respect to Multiemployer Plans maintained by the Company Disclosure Schedule).
(d) Neither or any Affiliate, SCHEDULE 3.11 states the aggregate amount of withdrawal liability or other termination liability that would be incurred by the Company nor or any Affiliate has ever maintained an Employee Program subject to Title IV of ERISAif there were a withdrawal from any such plan as determined by the most recent withdrawal liability calculation prepared by such plan. 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. None Except as disclosed on SCHEDULE 3.11, none of the Employee Programs ever which is a welfare plan maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part part 6 of Subtitle subtitle B of Title title I of ERISAERISA or comparable statutes or regulations) or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have been made available 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, trust agreements) as they may have been amended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) 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 (3) years with respect to such Employee Program, other than correspondence in the ordinary course of administration.
(f) Each Employee Program required to be listed in Section 4.18 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 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:
Appears in 1 contract