ERISA Representations. Seller represents and warrants to Buyer as of the date hereof that: (a) Section 10.02(a) of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller has furnished or made available to Buyer a true and complete copy of the plan document of each such Employee Plan. Each Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (b) The Internal Revenue Service has issued a favorable determination letter with respect to each Employee Plan that is intended to qualify under Section 401(a) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan. (c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets. (d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code. (e) No Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule. (f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary. (g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available. (h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee. (i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
Appears in 3 contracts
Sources: Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Limited Brands Inc)
ERISA Representations. Seller Albertson’s hereby represents and warrants to Buyer that Section 9.01 of the Disclosure Letter contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each material employment, severance or similar contract, plan, arrangement or policy and each other material plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) which is maintained, administered or contributed to by the Sellers or any of their ERISA Affiliates and covers any Employee as of the date hereof that:
hereof. Copies of such plans (aand, if applicable, related trust or funding agreements or insurance policies) Section 10.02(aand all amendments thereto (other than the ▇▇▇▇ ▇▇▇▇▇▇▇ Plan Documents) of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller has furnished or have been made available to Buyer together with, if applicable, the most recently filed annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” Albertson’s agrees to use its commercially reasonable efforts to furnish Buyer with a true and complete copy of each ▇▇▇▇ ▇▇▇▇▇▇▇ Plan Document prior to the plan document of each such Employee PlanClosing Date. Each Employee Plan has been maintained Except as would not reasonably be expected to have, individually or in material compliance with its terms and with the requirements prescribed by any and all applicable statutesaggregate, ordersa Material Adverse Effect, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect to each Employee Plan that which is intended to qualify be qualified under Section 401(a) of the Code, Code is so qualified and has received a determination letter to that effect from the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made availableIRS and, to the Company Employees for all periods prior Knowledge of any Seller, no circumstances exist which would reasonably be expected to materially adversely affect such qualification or exemption. With respect to any Surviving Plan (as defined below) (i) Sellers have not incurred any withdrawal liability under Subtitle E of Title IV of ERISA (“Withdrawal Liability”) that remains unsatisfied, as would reasonably be expected to have, individually or in the Closing Dateaggregate, ora Material Adverse Effect, if and (ii) Sellers have not received any notification, that any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (Surviving Plan is in reorganization or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Codeterminated.
(e) No Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (CVS Corp), Asset Purchase Agreement (Supervalu Inc)
ERISA Representations. Seller hereby represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(a) of the Disclosure Schedule sets forth 9.02 lists each Employee PlanPlan that covers any Employee, including copies of all employment agreements of which, and a summary plan description of each, have previously been furnished to which the Company is a partyBuyer. With respect to each such Employee Plan, all annual reports (Form 5500) required to be filed with the Internal Revenue Service or Department of Labor have been properly filed on a timely basis and Seller has provided the most recently filed Form 5500.
(b) Schedule 9.02 also includes a list of each Benefit Arrangement of Seller, copies or descriptions of which have been made available or furnished previously to Buyer.
(c) None of the Employee Plans or Benefit Arrangements listed on Schedule 9.02 is subject to the laws of any jurisdiction outside the United States.
(d) No non-exempt “prohibited transaction,” as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan.
(e) Neither Seller nor any ERISA Affiliate maintains or has ever maintained or contributed to or expects to incur liability with respect to any Employee Plan subject to Title IV of ERISA. Seller has not incurred nor does it reasonably expect to incur any liability with respect to any transaction described in Section 4069 of ERISA.
(f) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. Seller has furnished or made available to Buyer a true and complete copy copies of the plan document of most recent Internal Revenue Service determination or opinion letter with respect to each such Employee Plan. Each Employee Plan and Benefit Arrangement has been maintained in material compliance with its terms and with the applicable requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(bg) The Internal Revenue Service has issued a favorable determination letter with With respect to each the Business Employees and former Business Employees, there are no employee post-retirement health or welfare plans in effect, except as required by Section 4980B of the Code or applicable state law. No tax under Section 4980B or 4980D of the Code has been incurred in respect of any Employee Plan that is intended to qualify under Section 401(a) of the Codea group health plan, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(375000(b)(1) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(eh) No All contributions, reserves or premium payments accrued under each Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) and Benefit Arrangement have been made as of the Company Closing Date or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of reflected on the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company EmployeeBalance Sheet.
(i) Consummation No Employee will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brandshereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (ClearStory Systems, Inc.), Asset Purchase Agreement (Datawatch Corp)
ERISA Representations. The Limited and Seller represents represent and warrants warrant to Parent and Buyer as of the date hereof that:
(a) Section 10.02(a9.02(a) of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller The Limited has furnished or made available to Buyer and/or Parent a true and complete copy of the plan document and any associated trust agreement, the most current summary plan description (and any summary of material modifications thereto), the most recently filed Form 5500 (and any schedules attached thereto), and the most recent Internal Revenue Service determination letter, as applicable, of each such Employee Plan. Each Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(b) Section 9.02(b) of the Disclosure Schedule sets forth each Benefit Arrangement. The Limited has furnished or made available to Buyer and/or Parent true and complete copies of each such Benefit Arrangement and the most current summary (if any) distributed to Company Employees of each such Benefit Arrangement. Each Benefit Arrangement has been maintained in compliance with its terms and with the requirements prescribed by any and all applicable Laws.
(c) The Internal Revenue Service has issued a favorable determination letter with respect to each Employee Plan that is intended to qualify under Section 401(a) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(cd) Limited BrandsThe Limited, the Company and/or the Subsidiaries have each made full payment of all amounts as each is required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employeeand Benefit Arrangement, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the close of the last plan year ending prior to the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s 's Balance Sheet and books and records. Limited BrandsThe Limited, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees and the Benefit Arrangements in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the period beginning immediately after the close of such last plan year and ending on the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(de) Neither Limited BrandsThe Limited, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “"Multiemployer Plan,” " as defined in Section 3(37) of ERISA or to a “"Defined Benefit Plan,” " as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(e) No Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.)
Appears in 2 contracts
Sources: Stock Purchase Agreement (Charming Shoppes Inc), Stock Purchase Agreement (Limited Inc)
ERISA Representations. Seller represents The Company and warrants Seller, jointly and severally, hereby represent and warrant to Buyer as of the date hereof that:
(a) Section 10.02(a) Schedule 9.02 lists every Employee Plan copies or descriptions of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements of which have previously been made available or furnished to which the Company is a partyBuyer. With respect to each such Employee Plan, Seller the Company has provided the most recently filed Form 5500 and an accurate summary description of such plan.
(b) Schedule 9.02 also includes a list of every Benefit Arrangement, copies or descriptions of which have been made available or furnished previously to Buyer.
(c) None of the Employee Plans or Benefit Arrangements listed on Schedule 9.02 is subject to the laws of any jurisdiction outside the United States.
(d) No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. Neither the Company nor any ERISA Affiliate has incurred, within the past six years, nor reasonably expects to incur any liability under Title IV of ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA.
(e) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has been the subject of a favorable determination letter from the Internal Revenue Service. The Company has furnished or made available to Buyer a true and complete copy copies of the plan document of most recent determination letter with respect to each such Employee Plan. Each Employee Plan has been maintained in compliance in all material compliance respects with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect , which are applicable to each Employee Plan that is intended to qualify under Section 401(a) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(cf) Limited BrandsEach Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, the Company and/or the Subsidiaries have each made full payment of all amounts as requiredorders, under rules and regulations that are applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible AssetsBenefit Arrangement.
(dg) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with With respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result the employees and former employees of the Company Company, there are no employee post-retirement medical or any Subsidiary being treated health plans in effect, except as a single employer with any other Person under Section 414 of the Code.
(e) No Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) by Section 4980B of the Code. The Company has no obligation to provide such post termination benefits.
(h) All contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date except to the extent (i) reflected on the Closing Balance Sheet or (ii) retained by Seller. Except as disclosed in writing to Buyer prior to the agreements listed on Section 10.02(e)(iidate hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) of by the Disclosure Schedule.
(f) There are no investigationsCompany relating to, auditsor change in employee participation or coverage under, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. Each asset held under any Employee Plan may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine benefit claimsclaims for benefits) which are likely to result in material liability is pending, or to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) knowledge of the Code) Company and the Seller threatened, with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company EmployeeBenefit Arrangement.
(i) Consummation Except as set forth on Schedule 9.02, no employee of the Company will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(bhereby.
(j) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited BrandsEach Employee Plan and Benefit Arrangement may be amended, other than payments in respect of the termination 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, and no employee communications or provision of any Employee Plan or Benefit Arrangement document has failed to effectively reserve the right of the Company to so amend, terminate or otherwise modify such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited BrandsEmployee Plan or Benefit Arrangement.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Monotype Imaging Holdings Inc.)
ERISA Representations. Seller represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(a9.01(a) of the Disclosure Schedule sets forth lists each “employee benefit plan,” as such term is defined in Section 3(3) of the Employment Retirement Income Security Act of 1974 (“ERISA”), which (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by Seller or any of its ERISA Affiliates and (iii) covers any US Employee Plan, including all employment agreements (hereinafter referred to which collectively as the Company “Employee Plans”).
(b) No Employee Plan is a party. With respect to each such Employee “Multiemployer Plan” (within the meaning of Section 3(37) of ERISA) and, Seller has furnished or made available to Buyer a true and complete copy except as provided in Section 9.01(b) of the Disclosure Schedule, no Employee Plan is subject to Title IV of ERISA. Neither Seller nor any of its ERISA Affiliates has incurred any liability under Title IV of ERISA or any applicable provision of the Code, arising in connection with the termination of or complete or partial withdrawal from any plan document covered or previously covered by Title IV of ERISA or as a result of any violation of applicable law, in each such Employee Plancase, that could become, after the Closing Date, an obligation of Buyer. Each Employee Plan has been maintained in compliance with its terms and in all material respects in compliance with applicable law.
(c) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code.
(d) Section 9.01(d) of the Disclosure Schedule includes a list of each employment, severance, termination pay, change in control or other similar contract, agreement, arrangement or policy (written or oral) and each plan, program, contract, agreement, policy or arrangement (written or oral) providing for profit -sharing, bonuses, stock options, stock appreciation, stock purchase or other forms of incentive compensation, deferred compensation, health and welfare insurance coverage (including any self -insured arrangements), workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits or for post -retirement insurance, compensation or benefits which (i) is not an Employee Plan, (ii) is entered into, maintained, contributed to, or required to be contributed to, as the case may be, by Seller or any of its ERISA Affiliates and (iii) covers or relates to any US Employee. Such contracts, agreements, policies, programs, plans and arrangements as are described above, copies or descriptions of all of which have been made available or furnished previously to Buyer are hereinafter referred to collectively as the “Benefit Arrangements.” Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect to each Employee Plan that is intended to qualify under Section 401(a) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Codelaw.
(e) No Section 9.01(e) of the Disclosure Schedule lists each material employment, severance or similar contract or arrangement (whether or not written) or any plan, policy, fund, program or arrangement or contract providing for severance, profit-sharing, bonuses, stock options, stock appreciation rights or other forms of incentive compensation, insurance coverage (including any self-insured arrangements), workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits, pension or retirement benefits or for deferred compensation, or for post-retirement insurance, compensation or benefits that (i) is not an Employee Plan provides or Benefit Arrangement, (ii) is entered into, maintained, administered or will provide) medical, life insurance or death benefits with respect contributed to former employees (including retirees) of by the Company or any Subsidiaryof its Affiliates and (iii) covers any employee of the Business outside of the United States (hereinafter referred to collectively as the “International Plans”); provided, other than benefits however, that a plan or program sponsored or operated by a governmental authority (including the State Earnings Related Pension Scheme in the UK) shall not constitute an International Plan.
(f) With respect to the US Employees, there are no employee post-retirement medical, health or welfare plans in effect, except as required to be provided pursuant to (i) by Section 601 et seq. of ERISA or Section 4980B of the Code, or (ii) the agreements listed as set forth on Section 10.02(e)(ii9.01(f) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
Appears in 1 contract
ERISA Representations. Seller Albertson’s hereby represents and warrants to Buyer that Section 9.01 of the Disclosure Letter contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each material employment, severance or similar contract, plan, arrangement or policy and each other material plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock-related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) which is maintained, administered or contributed to by the Sellers or any of their ERISA Affiliates and covers any Employee as of the date hereof that:
hereof. Copies of such plans (aand, if applicable, related trust or funding agreements or insurance policies) Section 10.02(aand all amendments thereto (other than the T▇▇▇ ▇▇▇▇▇▇▇ Plan Documents) of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller has furnished or have been made available to Buyer together with, if applicable, the most recently filed annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” Albertson’s agrees to use its commercially reasonable efforts to furnish Buyer with a true and complete copy of each T▇▇▇ ▇▇▇▇▇▇▇ Plan Document prior to the plan document of each such Employee PlanClosing Date. Each Employee Plan has been maintained Except as would not reasonably be expected to have, individually or in material compliance with its terms and with the requirements prescribed by any and all applicable statutesaggregate, ordersa Material Adverse Effect, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect to each Employee Plan that which is intended to qualify be qualified under Section 401(a) of the Code, Code is so qualified and has received a determination letter to that effect from the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made availableIRS and, to the Company Employees for all periods prior Knowledge of any Seller, no circumstances exist which would reasonably be expected to materially adversely affect such qualification or exemption. With respect to any Surviving Plan (as defined below) (i) Sellers have not incurred any withdrawal liability under Subtitle E of Title IV of ERISA (“Withdrawal Liability”) that remains unsatisfied, as would reasonably be expected to have, individually or in the Closing Dateaggregate, ora Material Adverse Effect, if and (ii) Sellers have not received any notification, that any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (Surviving Plan is in reorganization or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Codeterminated.
(e) No Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
Appears in 1 contract
ERISA Representations. Seller and each Stockholder, severally but not jointly, hereby represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(a) Schedule 9.02 lists each Employee Plan and each Benefit Arrangement that covers any employee or former employee of the Disclosure Schedule sets forth each Employee PlanBusiness, including copies or descriptions of all employment agreements of which have previously been made available or furnished to which the Company is a partyBuyer. With respect to each such Employee Plan, Seller has furnished or made available provided an accurate summary description of such plan.
(b) Each Employee Plan which is intended to Buyer a true and complete copy be qualified under Section 401(a) of the plan document Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of each such Employee Planthe Code. Each Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect , which are applicable to each Employee Plan that is intended to qualify under Section 401(a) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Planplan.
(c) Limited BrandsNeither Seller nor any ERISA Affiliate maintains or has ever maintained or contributed to any Multiemployer Plan or, the Company and/or the Subsidiaries have each made full payment of all amounts except as requireddisclosed, under applicable Law or the terms of each an Employee Plan on behalf subject to Title IV of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible AssetsERISA.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result None of the Company Employee Plans or other Benefit Arrangements listed on Schedule 9.02 is subject to the laws of any Subsidiary being treated as a single employer with any other Person under Section 414 of the Codejurisdiction outside United States.
(e) No Employee Plan provides (or will provide) medical"prohibited transaction", life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I 406 of ERISA or Section 4975 of the Code Code, has occurred with respect to any Employee Plan.
(f) Each Benefit Arrangement has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including, but not limited to, ERISA and the Code, which are applicable to each such Benefit Arrangement.
(g) All contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for which a statutorythe period ending on the Closing Date, administrativewill be discharged and paid on or prior to the Closing Date. Except as disclosed in writing to Buyer prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by Seller nor any ERISA Affiliates relating to, or regulatory exemption is not availablechange in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof.
(h) The consummation market value of assets under each Defined Benefit Plan equals or exceeds the transactions contemplated by this Agreement will notpresent value of all vested and nonvested liabilities thereunder, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth determined in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employeeaccordance with reasonable actuarial assumptions.
(i) Consummation No Defined Benefit Plan has been completely or partially terminated or been the subject of a reportable event (as defined in Section 4043 of ERISA) as to which notices would be
(j) Neither Seller nor any ERISA Affiliates has incurred, nor does it reasonably expect to incur, any Liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability as defined in ERISA Section 4201) or under the Code with respect to any such Defined Benefit Plan.
(k) With respect to the employees and former employees of the Business, except as disclosed, there are no employee post-retirement medical or health plans in effect, except as required by Section 4980B of the Code. No tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code.
(l) No employee of the Business will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brandshereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atlantic Data Services Inc)
ERISA Representations. Seller represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(a) of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller has furnished or made available to Buyer a true and complete copy The fair value of the plan document assets of each all employee pension plans maintained by the Borrower or its ERISA Affiliates exceed the projected benefit obligations of such plans for service rendered to the close of the most recent complete plan year of such plans, as determined in accordance with GAAP. No employee pension plan maintained by the Borrower or any ERISA Affiliate which is subject to Part 3 of Title I of the Employee Plan. Each Employee Plan Retirement Income Security Act of 1974, as amended (“ERISA”) has been maintained an accumulated funding deficiency (as defined in material compliance with its terms and with the requirements prescribed by any and all applicable statutesSection 302(a) of ERISA), orders, rules and regulations, including but not limited to ERISA and the Code.
no reportable event (bas defined in Section 4043 of ERISA) The Internal Revenue Service has issued a favorable determination letter occurred with respect to each Employee Plan that any employee pension plan maintained for employees of the Borrower or any ERISA Affiliate and covered by Title IV of ERISA, no liability has been asserted against the Borrower or any ERISA Affiliate by the Pension Benefit Guaranty Corporation (“PBGC”) or by a trustee appointed pursuant to Section 4042(b) or (c) of ERISA, and no lien has been attached and no Person has threatened to attach a lien to any of the Borrower’s or any ERISA Affiliate’s property as a result of failure to comply with ERISA or as a result of the termination of any employee pension plan covered by Title IV of ERISA. Each employee pension plan (as defined in Section 3(2) of ERISA) maintained for employees of the Borrower or any ERISA Affiliate which is intended to qualify be qualified under Section 401(a) of the Code, and including all amendments to such plan or to any trust agreement, group annuity or insurance contract or other governing instrument, is the knowledge subject of Seller no event has occurred before or after a favorable determination by the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, Internal Revenue Service with respect to its qualification under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k401(a) of the CodeCode or, as to those amendments not yet subject to such a determination, such amendments meet the requirements of Section 401(a) for of the Code in all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, respects or, if any they do not, the Borrower will take all necessary action to conform such contributions will not be due prior nonconforming amendments to the Closing Date, adequate provision for reserves therefor shall be made on requirements of Section 401(a) of the Closing Statement Code and the Borrower will exercise its best efforts to obtain such a favorable determination letter within a reasonable period of Net Tangible Assets.
time. With respect to any multiemployer pension plan (d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or ERISA) to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither which the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company Borrower or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(e) No Employee Plan provides (ERISA Affiliate is or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are has been required to be provided pursuant contribute subsequent to September 25, 1980, (i) no material withdrawal liability (within the meaning of Section 4980B 4201 of ERISA) has been incurred by the CodeBorrower or any ERISA Affiliate, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have material withdrawal liability has been asserted against the Borrower or instituted involving any aspect ERISA Affiliate by a sponsor or an agent of a sponsor of any Employee Plan such multiemployer plan, (other than routine benefit claimsiii) which are likely to result no such multiemployer pension plan is in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” reorganization (as defined in Section 3(144241(a) of ERISA), and (iv) or “disqualified person” (as defined in Section 4975(e)(2) of neither the Code) with respect Borrower nor any ERISA Affiliate has any unfilled obligation to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due contribute to any such Company Employee.
multiemployer pension plan. As used in this Agreement, “ERISA Affiliate” means (i) Consummation any corporation included with the Borrower in a controlled group of the transactions contemplated by this Agreement will not result in any “excess parachute payments” corporations within the meaning of Section 280G(b414(b) of the Code. There are no change in , (ii) any trade or business (whether or not incorporated or for-profit) which is under common control payments payable to Company Employees other than any such payments which are with the responsibility Borrower within the meaning of Limited Brands, other than payments in respect Section 414(c) of the termination by Code, (iii) any member of an affiliated service group of which the Company Borrower is a member within the meaning of such Company Employees after Section 414(m) of the Closing. There are no retention payments payable to Company Employees Code, and (iv) any other than any such payments which are entity treated as being under common control with the responsibility Borrower under Section 414(o) of Limited Brandsthe Code.
Appears in 1 contract
Sources: Reimbursement Agreement
ERISA Representations. Seller represents and warrants each Shareholder hereby, severally represent and warrant to Buyer as of the date hereof that:
(a) Section 10.02(aSCHEDULE 7.02(a) attached hereto lists each Employee Plan and each Benefit Arrangement that covers any employee of the Disclosure Schedule sets forth each Employee PlanSeller, including copies or descriptions of all employment agreements of which have previously been made available or furnished to which the Company is a partyBuyer. With respect to each such Employee Plan, Seller has provided the most recently filed Form 5500 and an accurate summary description of such plan. Seller has provided Buyer with complete age, salary, service and related data as of the most recent practicable date for each employee of Seller.
(b) Neither the Seller nor any ERISA Affiliate maintains or has ever maintained or contributed to any Multiemployer Plan or Employee Plan subject to Title IV of ERISA.
(c) None of the Employee Plans or Benefit Arrangements listed on SCHEDULE 7.02
(a) covers any non-United States employee or non-United States former employee of the Seller.
(d) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan.
(e) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. Seller has furnished or made available to Buyer a true and complete copy copies of the plan document of most recent Internal Revenue Service determination letters with respect to each such Employee Plan. Each Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect , which are applicable to each Employee Plan that is intended to qualify under Section 401(a) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(cf) Limited BrandsEach Benefit Arrangement has been maintained in compliance with its terms and in all material respects with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Company and/or the Subsidiaries have each made full payment Code, which are applicable to such Benefit Arrangement.
(g) There has been no amendment to, written interpretation of all amounts as requiredor announcement (whether or not written) by Seller or any of its ERISA Affiliates relating to, under applicable Law or the terms of each change in employee participation or coverage under, any Employee Plan on behalf or Benefit Arrangement that would increase materially the expense of each Company Employee, to have contributed thereto before maintaining such Employee Plan or Benefit Arrangement above the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) level of the Code) expense incurred in respect thereof for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions fiscal year ended prior to the Employee Plans on behalf date hereof.
(h) No Tax under Section 4980B or 4980D of Company Employees the Code has been incurred in respect of benefits payableany Employee Plan that is a group health plan, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(375000(b)(1) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(ei) No Employee Plan provides (or will provide) medical, life insurance or death benefits with With respect to the employees and former employees (including retirees) of the Company Seller, there are no employee post-retirement medical or any Subsidiaryhealth plans in effect, other than benefits that are except as required to be provided pursuant to (i) by Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(fj) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) No employee of the Code) with respect Seller will become entitled to any Employee Plan has engaged in bonus, retirement, severance or similar benefit or enhanced benefit solely as a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation result of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employeehereby.
(ik) Consummation There is no contract or agreement of the transactions contemplated any kind covering any employee or former employee of Seller that would prevent such employee or former employee from becoming employed by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees Buyer on or after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited BrandsClosing Date.
Appears in 1 contract
ERISA Representations. Seller represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(a) of the Disclosure Schedule sets forth each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller has furnished or made available to Buyer a true and complete copy The fair value of the plan document assets of each all employee pension plans maintained by the Borrower or its ERISA Affiliates exceed the projected benefit obligations of such plans for service rendered to the close of the most recent complete plan year of such plans, as determined in accordance with GAAP. No employee pension plan maintained by the Borrower or any ERISA Affiliate which is subject to Part 3 of Title I of the Employee Plan. Each Employee Plan Retirement Income Security Act of 1974, as amended ("ERISA") has been maintained an accumulated funding deficiency (as defined in material compliance with its terms and with the requirements prescribed by any and all applicable statutesSection 302(a) of ERISA), orders, rules and regulations, including but not limited to ERISA and the Code.
no reportable event (bas defined in Section 4043 of ERISA) The Internal Revenue Service has issued a favorable determination letter occurred with respect to each Employee Plan that any employee pension plan maintained for employees of the Borrower or any ERISA Affiliate and covered by Title IV of ERISA, no liability has been asserted against the Borrower or any ERISA Affiliate by the Pension Benefit Guaranty Corporation ("PBGC") or by a trustee appointed pursuant to Section 4042(b) or (c) of ERISA, and no lien has been attached and no Person has threatened to attach a lien to any of the Borrower's or any ERISA Affiliate's property as a result of failure to comply with ERISA or as a result of the termination of any employee pension plan covered by Title IV of ERISA. Each employee pension plan (as defined in Section 3(2) of ERISA) maintained for employees of the Borrower or any ERISA Affiliate which is intended to qualify be qualified under Section 401(a) of the Code, and including all amendments to such plan or to any trust agreement, group annuity or insurance contract or other governing instrument, is the knowledge subject of Seller no event has occurred before or after a favorable determination by the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, Internal Revenue Service with respect to its qualification under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k401(a) of the CodeCode or, as to those amendments not yet subject to such a determination, such amendments meet the requirements of Section 401(a) for of the Code in all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, material respects or, if any they do not, the Borrower will take all necessary action to conform such contributions will not be due prior nonconforming amendments to the Closing Date, adequate provision for reserves therefor shall be made on requirements of Section 401(a) of the Closing Statement Code and the Borrower will exercise its best efforts to obtain such a favorable determination letter within a reasonable period of Net Tangible Assets.
time. With respect to any multiemployer pension plan (d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or ERISA) to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither which the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company Borrower or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(e) No Employee Plan provides (ERISA Affiliate is or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are has been required to be provided pursuant contribute subsequent to September 25, 1980: (i) Section 4980B of the Code, or no material withdrawal liability (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b4201 of ERISA) has been incurred by the Borrower or any ERISA Affiliate; (ii) no material withdrawal liability has been asserted against the Borrower or any ERISA Affiliate by a sponsor or an agent of the Code. There are no change in control payments payable to Company Employees other than a sponsor of any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of multiemployer plan; (iii) no such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.multiemployer pension plan is in
Appears in 1 contract
ERISA Representations. Seller represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(aSchedule 3.16(a) of the Disclosure Schedule sets forth _____________________ identifies each Employee Plan, including all employment agreements to which the Company is a party. With respect to each such Employee Plan, Seller has furnished or made available to Buyer a true and complete copy copies of the 45 Employee Plans, summary plan document of each such descriptions, and, if applicable, related trust agreements, and all amendments thereto together with (i) the most recent annual report prepared in connection with any Employee Plan (Form 5500 including, if applicable, Schedule B thereto) and (ii) the most recent actuarial valuation report prepared in connection with any Employee Plan.
(b) There is no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or Section 412 of the Code, with respect to any pension plan of Seller or any ERISA Affiliate of Seller. Neither Seller nor any ERISA Affiliate of Seller has incurred, or reasonably expects to incur prior to the Closing Date (other than a liability for premiums under Section 4007 of ERISA), any liability under Title IV of ERISA that will not be satisfied in full as of the Closing Date.
(c) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service and has pending a request for a determination timely filed with the Internal Revenue Service in respect of compliance with the Tax Reform Act of 1986. Except as described in Schedule 3.16(c), each Employee Plan that is not a Multiemployer Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(b) The Internal Revenue Service has issued a favorable determination letter with respect to each . No Employee Plan that is intended to qualify under a Multiemployer Plan or a multiple employer plan (within the meaning of Section 401(a413(c) of the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets).
(d) Neither Limited Brands, the Company nor any Subsidiary Schedule 3.16(d)(i) identifies each Benefit Arrangement. Seller has within the past six years furnished or made any contributions (available to Buyer copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been obligated to make maintained in substantial compliance with its terms and with the requirements prescribed by any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Planand all applicable statutes, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Codeorders, rules and regulations.
(e) No Each Employee Plan provides that is a "group health plan" (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required to be provided pursuant to (i) as defined in Section 4980B of the Code, or (ii) the agreements listed on has been operated in material compliance with Section 10.02(e)(ii) 4980B of the Disclosure ScheduleCode at all times.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with With respect to any Employee Plan has engaged that provides disability benefits, the amounts accrued on the September Adjusted Balance Sheets in a material “prohibited transaction” within accordance with FAS 112 are reasonably sufficient to pay all future obligations to the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 Transferred Employees who are disabled as of the Code for which a statutory, administrative, or regulatory exemption is not availableBalance Sheet Date.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aetna Life & Casualty Co)
ERISA Representations. Seller represents The Company and warrants Seller, jointly and ---------------------- severally, hereby represent and warrant to Buyer as of the date hereof that:
(a) Section 10.02(a) The Company has provided Buyer with complete salary, service and related data as of the most recent practicable date for employees of the Company.
(b) Section 10.02 of the Seller Disclosure Schedule sets forth lists each Employee PlanPlan that covers any employee of the Company, including copies or descriptions of all employment agreements of which have previously been made available or furnished to which the Company is a partyBuyer. With respect to each such Employee Plan, the Company has provided Forms 5500 for the past three years and an accurate summary description of such plan.
(c) Section 10.02 of the Seller Disclosure Schedule also includes a list of each Benefit Arrangement of the Company, copies or descriptions of which have been made available or furnished previously to Buyer.
(d) None of the Employee Plans or Benefit Arrangements listed on Section 10.02 of the Seller Disclosure Schedule covers any non-United States employee or former employee of the Business.
(e) No non-exempt "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code and for which the Company is reasonably likely to incur material liability, has occurred with respect to any Employee Plan.
(f) No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. The Company and its Affiliates have not incurred any liability under Title IV or ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA.
(g) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. The Company has furnished or made available to Buyer a true and complete copy copies of the plan document of most recent Internal Revenue Service determination letters with respect to each such Employee Planplan. Each Employee Plan has been maintained in all material respects in compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan.
(bh) The Internal Revenue Service Each Benefit Arrangement has issued a favorable determination letter been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangement.
(i) With respect to each the employees and former employees of the Company, there are no employee post-retirement medical or health plans in effect, except as required by Section 4980B of the Code. No material tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is intended to qualify under Section 401(a) of the Codea group health plan, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(375000(b)(1) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(ej) No All contributions and payments accrued under each Employee Plan provides (and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or will provide) medical, life insurance or death benefits with respect prior to former employees (including retirees) of the Company or any Subsidiary, other than benefits that are required Closing Date except to be provided pursuant to the extent (i) Section 4980B of reflected on the Code, Balance Sheet or (ii) retained by Seller. Except as disclosed in writing to Buyer prior to the agreements listed on Section 10.02(e)(iidate hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by Seller or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement in which employees of the Disclosure ScheduleCompany participate that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof.
(fk) There are No employee of the Company will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated hereby.
(l) No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to Seller's knowledge, threatened with respect to any Benefit Arrangement.
(m) Each Benefit Arrangement and Employee Plan 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 Benefit Arrangement or Employee Plan and no investigationsemployee communications or provision of any Benefit Arrangement or Employee Plan document has failed to effectively reserve the right of the Company to so amend, audits, claims terminate or lawsuits which have otherwise modify such Benefit Arrangement or Employee Plan.
(n) Neither Company nor any of its ERISA Affiliates maintains or is required to contribute to or has ever maintained or been asserted required to contribute to any Multiemployer Plan.
(o) Neither Company nor any of its ERISA Affiliates sponsors or instituted involving maintains any aspect Employee Plan subject to the funding standards of Section 412 of the Code.
(p) Neither Company nor any of its ERISA Affiliates has any liability arising our of or relating to a failure of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to comply with the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I provisions of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employee.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable , which liability is reasonably likely to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brandshave a Material Adverse Effect.
Appears in 1 contract
ERISA Representations. Seller hereby represents and warrants to Buyer as of the date hereof that:
(a) Section 10.02(aSchedule 10.2 lists each Employee Plan and Benefit Arrangement that covers any Employee. Seller has made available to Buyer correct and complete copies of all Employee Plans and Benefit Arrangements and, where applicable, each of the following documents with respect to such Employee Plans or Benefit Arrangements: (i) any amendments; (ii) any related trust documents; (iii) any documents governing the investment and management of the Employee Plan or the Benefit Arrangement, or the assets thereof, including any documents relating to fees incurred by the sponsor or participants and beneficiaries; (iv) the most recent summary plan descriptions and summaries of material modifications; (v) written communications to employees to the extent the substance of the Employee Plans and Benefit Arrangements described therein differ materially from the other documentation furnished under this clause; and (vi) copies of the Federal Form 5500 series and accountant’s opinion, if applicable, for each Employee, for the three plan years preceding the Closing Date.
(b) None of the Employee Plans or Benefit Arrangements listed on Schedule 10.2 of the Disclosure Schedule sets forth each is subject to the laws of any jurisdiction outside the United States.
(c) No non-exempt “prohibited transaction,” as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan, including all employment agreements .
(d) Neither Seller nor any ERISA Affiliate maintains or has ever maintained or contributed to which the Company is a party. With or expects to incur liability with respect to any Multiemployer Plan or Employee Plan subject to Title IV of ERISA or Section 412 of the Code. Neither Seller nor any ERISA Affiliate has incurred nor does it reasonably expect to incur any liability with respect to any transaction described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. No event has occurred that will or could reasonably be expected to give rise to disqualification of any such Employee Plan, Plan or to a tax under Section 511 of the Code. Seller has furnished or made available to Buyer a true and complete copy copies of the plan document of most recent Internal Revenue Service determination or opinion letter with respect to each such Employee Plan. Each Employee Plan and Benefit Arrangement has been maintained in material compliance with its terms and with the applicable requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to regulations and neither the Seller nor any ERISA and the CodeAffiliate has received any outstanding written notice from any governmental or quasi-governmental authority questioning or challenging such compliance.
(bf) The Internal Revenue Service has issued a favorable determination letter with With respect to each the Employees and former Employees, there are no employee post-retirement health or welfare plans in effect, except as required by Section 4980B of the Code or applicable state law. No tax under Section 4980B or 4980D of the Code has been incurred in respect of any Employee Plan that is intended to qualify under Section 401(a) of the Codea group health plan, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(375000(b)(1) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(eg) No All contributions, reserves or premium payments accrued under each Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) and Benefit Arrangement have been made as of the Company Closing Date or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of reflected on the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not availableClosing Balance Sheet.
(h) The consummation Except as set forth in Schedule 3.17(f), no Employee will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employeehereby.
(i) Consummation Neither the Seller nor any ERISA Affiliate nor any of their respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the transactions contemplated by this Agreement will not result in Seller or any “excess parachute payments” within the meaning ERISA Affiliate or any of Section 280G(b) of the Code. There are no change in control payments payable their respective directors, officers or employees to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brandsliability under ERISA.
Appears in 1 contract
ERISA Representations. Seller The Company hereby represents and warrants to Parent and Buyer as of the date hereof that:
(a) Section 10.02(a) of the Disclosure Schedule sets forth 10.2 lists each Employee Plan, including all employment agreements to which the Plan and Benefit Arrangement that covers any Employee. The Company is a party. With respect to each such Employee Plan, Seller has furnished or made available to Buyer a true correct and complete copy copies of all Employee Plans and Benefit Arrangements and, where applicable, each of the following documents with respect to such Employee Plans or Benefit Arrangements: (i) any amendments; (ii) any related trust documents; (iii) any documents governing the investment and management of the Employee Plan or the Benefit Arrangement, or the assets thereof, including any documents relating to fees incurred by the sponsor or participants and beneficiaries; (iv) the most recent summary plan document descriptions and summaries of material modifications; (v) written communications to employees to the extent the substance of the Employee Plans and Benefit Arrangements described therein differ materially from the other documentation furnished under this clause and (vi) copies of the Federal Form 5500 series and accountant's opinion, if applicable, for each Employee, for the three plan years preceding the Closing Date.
(b) None of the Employee Plans or Benefit Arrangements listed on Schedule 10.2(a) is subject to the laws of any jurisdiction outside the United States.
(c) No non-exempt "prohibited transaction," as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan.
(d) Neither the Company nor any ERISA Affiliate maintains or has ever maintained or contributed to or expects to incur liability with respect to any Multiemployer Plan or Employee Plan subject to Title IV of ERISA or Section 412 of the Code. Neither the Company nor any ERISA Affiliate has incurred any liability with respect to any transaction described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to the Closing Date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. No event has occurred that will or could reasonably be expected to give rise to disqualification of any such Employee Plan or to a tax under Section 511 of the Code. The Company has furnished to Buyer copies of the most recent Internal Revenue Service determination or opinion letter with respect to each such Employee Plan. Each Employee Plan and Benefit Arrangement has been maintained in material compliance with its terms and with the applicable requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to regulations and neither the Company nor any ERISA and the CodeAffiliate has received any outstanding written notice from any governmental or quasi-governmental authority questioning or challenging such compliance.
(bf) The Internal Revenue Service has issued a favorable determination letter with With respect to each the Employees and former Employees, there are no employee post-retirement health or welfare plans in effect, except as required by Section 4980B of the Code or applicable state law. No tax under Section 4980B or 4980D of the Code has been incurred in respect of any Employee Plan that is intended to qualify under Section 401(a) of the Codea group health plan, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(375000(b)(1) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(eg) No All contributions and payments accrued under each Employee Plan provides and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date except to the extent reflected on the Financial Statements and on Schedule 10.2(g). There has been no amendment to, written interpretation of or announcement (whether or will providenot written) medical, life insurance or death benefits with respect to former employees (including retirees) of by the Company or any Subsidiaryof their respective ERISA Affiliates relating to, other than benefits or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that are required would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to be provided pursuant the date hereof.
(h) Except as set forth in Schedules 6.3, 6.4 and 6.5, no Employee will become entitled to any material bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated hereby.
(i) Section 4980B Neither the Company nor any ERISA Affiliate nor any of the Codetheir respective directors, officers, employees or (ii) the agreements listed on Section 10.02(e)(ii) any other fiduciary has committed any breach of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to fiduciary responsibility imposed by ERISA that would subject the Company or any SubsidiaryERISA Affiliate or any of their respective directors, officers or employees to liability under ERISA.
(gj) Neither There have been no acts or omissions by the CompanyCompany or any ERISA Affiliate that have given rise to or could reasonably be expected to give rise to material fines, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISApenalties, taxes or related charges under Sections 502(c) or “disqualified person” (as defined in Section 4975(e)(2502(i) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 Chapter 43 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance payERISA Affiliate may be liable.
(k) The provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, unemployment compensationas amended, or any other paymentequivalent state statute, and the Health Insurance Portability and Accountability Act of 1996, or except as set forth any equivalent state statute, have been complied with in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employeeall material respects.
(il) Consummation of Except as disclosed in Schedule 10.2(k), neither the transactions contemplated by this Agreement will not result in Company nor any “excess parachute payments” ERISA Affiliate maintains a "nonqualified deferred compensation plan" within the meaning of Section 280G(b) 409A of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
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ERISA Representations. Seller represents Parent and warrants Seller, jointly and severally, hereby represent and warrant to Buyer as of the date hereof and SVT that:
(a) Section 10.02(a) Schedule 8.02 of the Disclosure Schedule sets forth lists each Employee PlanPlan that covers any Employee, including copies of all employment agreements of which, and a summary plan description of each, have previously been furnished to which the Company is a partyBuyer and SVT. With respect to each such Employee Plan, all annual reports (Form 5500) required to be filed with the Internal Revenue Service or Department of Labor have been properly filed on a timely basis and Seller has provided the most recently filed Form 5500.
(b) Schedule 8.02 of the Disclosure Schedule also includes a list of each Benefit Arrangement, copies or descriptions of which have been made available or furnished previously to Buyer and SVT.
(c) None of the Employee Plans or Benefit Arrangements listed on Schedule 8.02 of the Disclosure Schedule is subject to the laws of any jurisdiction outside the United States.
(d) No non-exempt "prohibited transaction," as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan.
(e) To Seller's Knowledge, neither Seller nor any of its Subsidiaries, nor any ERISA Affiliate thereof, maintains or has ever maintained or contributed to or expects to incur liability with respect to any Multiemployer Plan or Employee Plan subject to Title IV of ERISA. Neither Seller nor any of its Subsidiaries, nor any ERISA Affiliate thereof, has incurred or reasonably expects to incur any liability with respect to any transaction described in Section 4069 of ERISA.
(f) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. Seller has furnished or made available to Buyer a true and complete copy SVT copies of the plan document of most recent Internal Revenue Service determination or opinion letter with respect to each such Employee Plan. Each Employee Plan and Benefit Arrangement has been maintained in material compliance with its terms and with the applicable requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code.
(bg) The Internal Revenue Service has issued a favorable determination letter with With respect to each the Employees and former Employees, there are no employee post-retirement health or welfare plans in effect, except as required by Section 4980B of the Code or applicable state law. No tax under Section 4980B 45 or 4980D of the Code has been incurred in respect of any Employee Plan that is intended to qualify under Section 401(a) of the Codea group health plan, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, adequate provision for reserves therefor shall be made on the Closing Statement of Net Tangible Assets.
(d) Neither Limited Brands, the Company nor any Subsidiary has within the past six years made any contributions (or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(375000(b)(1) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result of the Company or any Subsidiary being treated as a single employer with any other Person under Section 414 of the Code.
(eh) No All contributions, reserves or premium payments accrued under each Employee Plan provides (or will provide) medical, life insurance or death benefits with respect to former employees (including retirees) and Benefit Arrangement have been made as of the Company Closing Date or any Subsidiary, other than benefits that are required to be provided pursuant to (i) Section 4980B of reflected on the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(f) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) of the Code) with respect to any Employee Plan has engaged in a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company EmployeeClosing Balance Sheet.
(i) Consummation No Employee will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brandshereby.
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Sources: Asset Purchase Agreement (Conversion Services International Inc)
ERISA Representations. Seller hereby represents and warrants to --------------------- Buyer as of the date hereof that:
(a) Section 10.02(a) Schedule 9.02 lists each Employee Plan and each Benefit Arrangement ------------- that covers any employee or former employee of the Disclosure Schedule sets forth each Employee PlanBusiness, including copies or descriptions of all employment agreements of which have previously been made available or furnished to which the Company is a partyBuyer. With respect to each such Employee Plan, Seller has furnished provided the most recently filed Form 5500 and an accurate summary description of such plan.
(b) No Employee Plan is an "employee pension benefit plan" as that term is ----------------------------- defined in Section 3(2) of ERISA.
(c) Neither the Company nor any ERISA Affiliate maintains or made available has ever maintained or contributed to Buyer a true and complete copy any Multiemployer Plan or Employee Plan subject to Title IV of ERISA.
(d) None of the plan document Employee Plans or other Benefit Arrangements listed on Schedule 9.02 covers any non-United States employee or former employee of each such the Business.
(e) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan. ;
(f) Each Employee Plan Benefit Arrangement has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such Employee Plan or Benefit Arrangement.
(bg) The Internal Revenue Service has issued a favorable determination letter with respect to All contributions and payments accrued under each Employee Plan that is intended and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to qualify under Section 401(a) of include proportional accruals for the Code, and to the knowledge of Seller no event has occurred before or after the date of such letter that would disqualify such Employee Plan.
(c) Limited Brands, the Company and/or the Subsidiaries have each made full payment of all amounts as required, under applicable Law or the terms of each Employee Plan period ending on behalf of each Company Employee, to have contributed thereto before the Closing Date (including any employee salary reduction contributions described in Section 125 or Section 401(k) of the Code) for all periods through and including the Closing Date, will be discharged and paid on or proper accruals for such contributions have been made and are reflected on the Company’s Balance Sheet and books and records. Limited Brands, the Company and/or the Subsidiaries will pay such contributions to the Employee Plans on behalf of Company Employees in respect of benefits payable, or otherwise made available, to the Company Employees for all periods prior to the Closing Date, or, if any such contributions will not be due Date except to the extent (i) reflected on the Closing Balance Sheet or (ii) retained by Seller. Except as disclosed in writing to Buyer prior to the Closing Datedate hereof, adequate provision there has been no amendment to, written interpretation of or announcement (whether or not written) by Seller or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for reserves therefor shall be made on the Closing Statement of Net Tangible Assetsfiscal year ended prior to the date hereof.
(dh) Neither Limited BrandsThere is no contract, the Company nor agreement, plan or arrangement covering any Subsidiary has within the past six years made any contributions (employee or has been obligated to make any contributions) on behalf of Company Employees to a “Multiemployer Plan,” as defined in Section 3(37) of ERISA or to a “Defined Benefit Plan,” as defined in Section 3(35) of ERISA. Neither the Company nor any Subsidiary has any liability with respect to a Multiemployer Plan or a Defined Benefit Plan, including without limitation as a result former employee of the Company Business that, individually or collectively, could give rise to the payment of any Subsidiary being treated as a single employer with any other Person under amount that would not be deductible pursuant to the terms of Section 414 280G of the Code.
(ei) No tax under Section 4980B of the Code has been incurred in respect of any Employee Plan provides (or will providethat is a group health plan, as defined in Section 5000(b)(1) medical, life insurance or death benefits of the Code. Seller shall comply with the notice and coverage requirements of Section 4980B of the Code with respect to any Transferred Employees, as defined below.
(j) With respect to the employees and former employees (including retirees) of the Company Company, there are no employee post-retirement medical or any Subsidiaryhealth plans in effect, other than benefits that are except as required to be provided pursuant to (i) by Section 4980B of the Code, or (ii) the agreements listed on Section 10.02(e)(ii) of the Disclosure Schedule.
(fk) There are no investigations, audits, claims or lawsuits which have been asserted or instituted involving any aspect of any Employee Plan (other than routine benefit claims) which are likely to result in material liability to the Company or any Subsidiary.
(g) Neither the Company, any Subsidiary nor any “party in interest” (as defined in Section 3(14) of ERISA) or “disqualified person” (as defined in Section 4975(e)(2) No employee of the Code) with respect Business will become entitled to any Employee Plan has engaged in bonus, retirement, severance or similar benefit or enhanced benefit solely as a material “prohibited transaction” within the meaning of Part 4 of Subtitle B of Title I of ERISA or Section 4975 of the Code for which a statutory, administrative, or regulatory exemption is not available.
(h) The consummation result of the transactions contemplated by this Agreement will not, separately or together, except as set forth on Section 10.02(h) of the Disclosure Schedule, entitle any Company Employee to receive from the Company or any Subsidiary severance pay, unemployment compensation, or any other payment, or except as set forth in Section 10.07, accelerate the time of payment or vesting of, or increase the amount of, compensation due to any such Company Employeehereby.
(i) Consummation of the transactions contemplated by this Agreement will not result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code. There are no change in control payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands, other than payments in respect of the termination by the Company of such Company Employees after the Closing. There are no retention payments payable to Company Employees other than any such payments which are the responsibility of Limited Brands.
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