ERISA Representations. The Company and Stockholder, jointly and severally, hereby represent and warrant to Parent that: (a) SCHEDULE 9.02 lists each Employee Plan that covers any employee of the Company, copies and descriptions of all of which have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the Company. (b) SCHEDULE 9.02 also includes a list of each Benefit Arrangement of the Company, copies and descriptions of which have been made available or furnished previously to Parent. (c) None of the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the Company. (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) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan. (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. The Company has furnished to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such plan. Each Employee Plan 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 such plan. (g) Each Benefit Arrangement has 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. (h) With respect to 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. (i) 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 as disclosed in writing to Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder or any of their 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 the year ended prior to the date hereof. (j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate. (k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending. (l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date. (m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code. (n) 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. (o) 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 hereby.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (Parexel International Corp)
ERISA Representations. The Company Each Seller hereby represents and Stockholder, jointly and severally, hereby represent and warrant warrants to Parent Buyer that:
(a) SCHEDULE 9.02 lists Schedule 8.02(a) contains a correct and complete list identifying each Employee Plan that “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar contract, plan, arrangement or policy and each other 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 or early retirement benefits (including compensation, pension, health, medical or life insurance benefits) which is maintained, administered or contributed to by Seller or any of its ERISA Affiliates or other Affiliates and covers any employee or former employee of the CompanyBusiness, copies or with respect to which Seller or any of its ERISA Affiliates or other Affiliates has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and descriptions of all of which amendments thereto and written interpretations thereof have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent Buyer together with complete age, salary, service and related data as of the most recent practicable date for employees of annual report (including Form 5500 including, if applicable, Schedule B thereto) and tax return (including Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the Company“Employee Plans.”
(b) SCHEDULE 9.02 also includes a list None of each Benefit Arrangement Seller, any of its ERISA Affiliates or other Affiliates and any predecessor thereof sponsors, maintains or contributes to, or has in the Companypast sponsored, copies and descriptions maintained or contributed to, any Employee Plan subject to Title IV of which have been made available ERISA or furnished previously to Parentotherwise.
(c) None of the Employee Plans Seller, any ERISA Affiliate or other arrangements listed on SCHEDULE 9.02 covers Affiliate of Seller and any non-United States employee predecessor thereof contributes to, or former employee has in the past contributed to, any multiemployer plan, as defined in Section 3(37) of the CompanyERISA.
(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) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(f) Each Employee Plan which that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination from the period from its adoption to dateInternal Revenue Service, and each trust forming a part thereof Seller is exempt from tax pursuant to Section 501(a) not aware of the Codeany reason why any such determination letter should be revoked or not be reissued. The Company Seller has furnished to Parent Buyer copies of the most recent Internal Revenue Service determination letters with respect to each such planEmployee Plan. Each Employee Plan has been maintained in material 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 such plan.
(g) Each Benefit Arrangement has been maintained in substantial compliance Employee Plan. No material events have occurred with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangement.
(h) With respect to any Employee Plan that could result in payment or assessment by or against the employees and former employees Business, Buyer or any of the Companyits Affiliates of any material excise taxes under Sections 4972, there are no employee post-retirement medical 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or health plans in effect, except as required by Section 4980B 5000 of the Code.
(ie) There is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Business, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent Seller or any of its Affiliates from amending or terminating any Employee Plan providing health or medical benefits in respect of any active employee of the Business.
(f) All contributions and payments accrued under each Employee Plan and Benefit ArrangementPlan, 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 as disclosed in writing to Parent prior Date except to the date hereof, there extent it is an Excluded Liability. There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder Seller or any of their ERISA its Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that which 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 most recent fiscal year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(mg) There is no contract, agreement, plan or arrangement (written or otherwise) covering any employee or former employee of the Company Business that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section Sections 280G of the Code.
(n) 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)(1or 162(m) of the Code.
(o) Except as set forth on SCHEDULE 9.02, no employee of the Company . No Transferred Employee will become entitled to any bonus, retirement, severance severance, job security or similar benefit benefit, or enhanced benefit solely the enhancement of any such benefit, as a result of the transactions contemplated herebyTransactions.
(h) The Purchased Assets are not now nor will they after the passage of time be subject to any Lien imposed under Code Section 412(n) by reason of the failure of Seller or its Affiliates to make timely installments or other payments required by Code Section 412.
(i) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Seller, threatened against or involving, any Employee Plan before any court or arbitrator or any state, federal or local governmental body, agency or official.
Appears in 1 contract
ERISA Representations. The Company and Stockholder, jointly and severally, hereby represent and warrant to Parent that:
(a) SCHEDULE 9.02 lists Schedule 3.12 sets forth each Employee Plan "employee benefit plan", as defined in Section 3(3) of ERISA, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company or any of its ERISA Affiliates and (iii) covers any employee of the Company, copies and descriptions of all of which have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the Company.
(b) SCHEDULE 9.02 also includes a list of each Benefit Arrangement of the Company, copies and descriptions of which have been made available or furnished previously to Parent.
(c) None of the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the CompanyCompany or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). Except as set forth in Schedule 3.12, no Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the Code.
(db) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee PlanPlan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be material.
(e) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(fc) Each Employee Plan which that 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 created under any such Employee Plan is exempt from tax pursuant to under Section 501(a) of the CodeCode and has been so exempt during the period from creation to date. The Company has furnished or made available to Parent copies of the Investors or their counsel with the most recent determination letters of the Internal Revenue Service determination letters with respect relating to each such planEmployee Plan. Each Employee Plan 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, which are applicable to such plan.
(gd) Schedule 3.12 sets forth each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. 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 which are applicable to such Benefit Arrangementregulations.
(he) With Neither the Company nor any of its ERISA Affiliates has any current or projected liability in respect to the employees and of post-employment or post-retirement welfare benefits for retired or former employees of the Company, there are no employee post-retirement medical or health plans in effectCompany and any Subsidiary, except as required by to avoid excise tax under Section 4980B of the CodeCode or as previously disclosed by the Company in writing to the Investors.
(if) 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 as disclosed in writing to Parent the Investors prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder Company or any of their 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 the fiscal year ended prior to the date hereof.
(jg) As of the Closing DateExcept as set forth in Schedule 3.12, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There there is no contract, agreement, plan or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors.
(nh) No material 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.
(oi) Except as set forth on SCHEDULE 9.02, no No employee or former employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance severance, job security or similar benefit or enhanced enhancement of such a benefit solely as a result of the transactions contemplated herebyby this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Morgan Stanley Dean Witter & Co)
ERISA Representations. The Company and Stockholder, jointly and severally, hereby represent and warrant to Parent that:
(a) SCHEDULE 9.02 lists each Employee Plan that covers any employee Section 3.18(a) of the CompanyDisclosure Schedule lists, copies and descriptions of all of which have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees hereof, each "employee benefit plan," as such term is defined in Section 3(3) of the CompanyEmployment Retirement Income Security Act of 1974 ("ERISA"), which (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by Visteon or any of its ERISA Affiliates and (iii) covers any current or former Visteon employee (hereinafter referred to collectively as the "EMPLOYEE PLANS").
(b) SCHEDULE 9.02 also includes Except as disclosed on Section 3.18(b) of the Disclosure Schedule, no Employee Plan is a list "Multiemployer Plan" (within the meaning of Section 3(37) of ERISA) or is subject to Title IV of ERISA. Neither Visteon 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 covered or previously covered by Title IV of ERISA or as a result of any violation of applicable law, in each Benefit Arrangement case, that could become, after the Closing Date, an obligation of the Company, copies . Each Employee Plan has been maintained in substantial compliance with its terms and descriptions of which have been made available or furnished previously to Parentin all material respects with applicable law.
(c) None of the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the Company.
(d) No "transaction prohibited transaction", as defined in by Section 406 of ERISA or Section 4975 of the Code, Code has occurred with respect to any Employee Plan covered by Title I of ERISA, which transaction has or will cause the Company or any of its Subsidiaries to incur any liability under ERISA, the Code or otherwise, excluding transactions effected pursuant to and in compliance with a statutory or administrative exemption. No "accumulated funding deficiency", as defined in Section 412 of the Code, has been incurred with respect to any Employee Plan subject to such Section 412, whether or not waived. No "reportable event", within the meaning of Section 4043 of ERISA, and except for the transactions contemplated by this Agreement or in connection therewith, no event described in Section 4062 or 4063 of ERISA, has occurred in connection with any Employee Plan. Neither Visteon nor any ERISA Affiliate of Visteon has (i) engaged in, or is a successor or parent corporation to an entity that has engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or (ii) incurred, or reasonably expects to incur prior to the Closing Date, (A) any liability under Title IV of ERISA arising in connection with the termination of, or a complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA or (B) any liability under Section 4971 of the Code that in either case could become a liability of the Company or any Subsidiary or any ERISA Affiliates thereof after the Closing Date. The assets of the Company and all of its Subsidiaries are not now, nor will they after the passage of time be, subject to any Lien imposed under Code Section 412(n) by reason of a failure of any of Visteon or any of its Affiliates to make timely installments or other payments required under Code Section 412.
(e) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(fd) 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 to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such plan. Each Employee Plan has been maintained in substantial compliance with its terms and in all material respects 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.
(ge) Section 3.18(e) 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, with respect to such arrangements that may result in Visteon payments that exceed $100,000, oral), existing as of the date hereof, and each plan, program, contract, agreement, policy or arrangement (written or, with respect to such arrangements, existing as of the date hereof, that may result in Visteon payments that exceed $100,000, 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, or any other type of compensation (other than wages) or material 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 Visteon or any of its ERISA Affiliates in either Mexico or the United States of America and (iii) covers or relates to any employee who will be providing exclusive or shared services to the Business, but excluding any governmental or statutory plans, programs or arrangements. 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 the Company, 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 statutes, orders, rules and regulations which are applicable to such Benefit Arrangementlaw.
(hf) With respect to the employees and former employees Except as disclosed on Section 3.18(f) of the CompanyDisclosure Schedule, or as required by Section 601 et seq. of ERISA or Section 4980B of the Code, there are no employee post-retirement medical medical, health or health welfare plans in effect, except as required by Section 4980B of the Code.
(i) 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 as disclosed in writing to Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder or any of their 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 the year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(n) 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.
(o) 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 hereby.
Appears in 1 contract
ERISA Representations. The Company Seller and StockholderAllenbach, jointly and severallysever▇▇▇▇, hereby ▇▇▇eby represent and warrant to Parent Buyer that:
(a) SCHEDULE 9.02 Schedule 8.02 lists each Employee Plan that covers any employee of the CompanySeller, copies and or descriptions of all of which have previously been made available or furnished to ParentBuyer. With respect to each Employee Plan, the Company Seller has provided the three most recently filed Forms Form 5500 and an accurate summary description of such plan. The Company Seller has provided Parent Buyer with complete age, salary, service and related data as of the most recent practicable date for employees of the CompanySeller.
(b) SCHEDULE 9.02 Schedule 8.02 also includes a list of each Benefit Arrangement which (i) is not an Employee Plan, (ii) is entered into, maintained or contributed to, as the case may be, by Seller or any of its Affiliates and (iii) covers any employee or former employee of the Company, copies and Seller. Copies or descriptions of which all Benefit Arrangements have been made available or furnished previously to ParentBuyer.
(c) None No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. The Seller and its Affiliates have not incurred any liability under Title IV or ERISA arising in connection with the Employee Plans termination of any plan covered or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee previously covered by Title IV of the CompanyERISA.
(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) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(f) Each Employee Plan which is intended to be qualified under Section 401(a401 (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(a501 (a) of the Code. The Company Seller has furnished to Parent Buyer copies of the most recent Internal Revenue Service determination letters with respect to each such plan. Each Employee Plan 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 such plan.
(ge) Each Benefit Arrangement has 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.
(hf) With respect to the employees and former employees of the CompanySeller, there are no employee post-retirement medical or health plans in effect, except as required by Section 4980B of the Code.
(ig) 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 as disclosed in writing to Parent Buyer prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder Seller or any of their 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 the fiscal year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(mh) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company Seller that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G 28OG of the Code.
(ni) 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.
(oj) Except as set forth on SCHEDULE 9.02, no No employee of the Company Seller will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated hereby.
(k) The Seller does not have, nor is it reasonably expected to have, any liability under Title IV of ERISA.
Appears in 1 contract
Sources: Asset Purchase Agreement (Omni Multimedia Group Inc)
ERISA Representations. The Company Seller hereby represents and Stockholder, jointly and severally, hereby represent and warrant warrants to Parent Buyer that:
(a) SCHEDULE 9.02 Schedule 8.02 of the Disclosure Schedule lists each Employee Plan that covers any employee of the CompanyEmployee, copies and descriptions of all of which which, and a summary plan description of each, have previously been made available or furnished to ParentBuyer. With respect to each Employee Plan, all annual reports (Form 5500) required to be filed with the Company Internal Revenue Service or Department of Labor have been properly filed on a timely basis and Seller has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the CompanyForm 5500.
(b) SCHEDULE 9.02 Schedule 8.02 of the Disclosure Schedule also includes a list of each Benefit Arrangement of the CompanySeller, copies and or descriptions of which have been made available or furnished previously to ParentBuyer.
(c) None of the Employee Plans or other arrangements Benefit Arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee Schedule 8.02 of the CompanyDisclosure 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) No plan Neither Seller nor any ERISA Affiliate maintains or arrangement listed on Schedule 9.02 is a has ever maintained or contributed to or expects to incur liability with respect to any Multiemployer PlanPlan or Employee Plan subject to Title IV of ERISA. Neither the Company Seller nor any Subsidiary or ERISA Affiliate has ever contributed incurred nor does it reasonably expect to or had an obligation to contribute incur any liability with respect to any Multiemployer Plantransaction 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. The Company Seller has furnished to Parent Buyer copies of the most recent Internal Revenue Service determination letters or opinion letter with respect to each such planEmployee Plan. Each Employee Plan and Benefit Arrangement has been maintained in compliance with its terms and with the applicable requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan.
(g) Each Benefit Arrangement has 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.
(h) With respect to the employees Employees and former employees of the CompanyEmployees, there are no employee post-retirement medical health or health welfare plans in effect, except as required by Section 4980B of the Code.
(i) 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 as disclosed in writing to Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder or any of their 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 the year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(n) applicable state law. No tax under Section 4980B or 4980D 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.
(oh) Except All contributions, reserves or premium payments accrued under each Employee Plan and Benefit Arrangement have been made as set forth on SCHEDULE 9.02, no employee of the Company Closing Date or are reflected on the Closing Balance Sheet.
(i) No Employee will become entitled to any bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated hereby.
Appears in 1 contract
ERISA Representations. The Company and Stockholdereach Seller, jointly and severally, hereby represent and warrant to Parent Buyer as of the date hereof and as of the Closing Date that:
(a) SCHEDULE Schedule 9.02 lists each Employee Plan that covers any employee of the CompanyEmployee, copies and descriptions of all of which which, and a summary plan description of each, have previously been made available or furnished to ParentBuyer. With respect to each 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 the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the CompanyForm 5500.
(b) SCHEDULE Schedule 9.02 also includes a list of each Benefit Arrangement of the CompanyCompany and each Subsidiary, copies and or descriptions of which have been made available or furnished previously to ParentBuyer.
(c) None of the Employee Plans or other arrangements Benefit Arrangements listed on SCHEDULE Schedule 9.02 covers is subject to the laws of any non-jurisdiction outside the United States employee or former employee of the CompanyStates.
(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) No plan Neither the Company, any Subsidiary nor any ERISA Affiliate maintains or arrangement listed on Schedule 9.02 is a has ever maintained or contributed to or expects to incur liability with respect to any Multiemployer PlanPlan or Employee Plan subject to Title IV of ERISA. Neither the Company Company, any Subsidiary nor any Subsidiary or ERISA Affiliate has ever contributed incurred nor does it reasonably expect to or had an obligation to contribute incur any liability with respect to any Multiemployer Plantransaction 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. The Company has furnished to Parent Buyer copies of the most recent Internal Revenue Service determination letters or opinion letter with respect to each such planEmployee Plan. Each Employee Plan and Benefit Arrangement has been maintained in compliance with its terms and with the applicable requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan.
(g) Each Benefit Arrangement has 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.
(h) With respect to the employees Employees and former employees of the CompanyEmployees, there are no employee post-retirement medical health or health 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 a group health plan, as defined in Section 5000(b)(1) of the Code.
(ih) 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 as disclosed in writing to Parent prior Date except to the date hereof, there extent reflected on the Closing Balance Sheet. There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder any Subsidiary or any of their respective 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 the fiscal year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(ki) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(n) 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.
(o) Except as set forth on SCHEDULE 9.02, no employee of the Company will become entitled to any material bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated hereby.
Appears in 1 contract
ERISA Representations. The Company and each Stockholder, jointly and severally, hereby represent and warrant to Parent that:
(a) SCHEDULE Schedule 9.02 lists each Employee Plan that covers any employee of the Company, copies and descriptions of all of which have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the Company.
(b) SCHEDULE Schedule 9.02 also includes a list of each Benefit Arrangement of the Company, copies and descriptions of which have been made available or furnished previously to Parent.
(c) None of the Employee Plans or other arrangements listed on SCHEDULE Schedule 9.02 covers any non-United States employee or former employee of the Company, except one employee of the Company located in England who is covered by the Employee Plans so designated on Schedule 9.02.
(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) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(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. The Company has furnished to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such plan. Each Employee Plan 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 such plan.
(g) Each Benefit Arrangement has 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.
(h) With respect to 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.
(i) 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 as disclosed in writing to Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, any Stockholder or any of their 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 the year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each The Company does not have and has never had any Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(nm) 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.
(on) Except as set forth on SCHEDULE 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 hereby.
Appears in 1 contract
ERISA Representations. The Company Seller hereby represents and Stockholder, jointly and severally, hereby represent and warrant warrants to Parent Buyer that:
(a) SCHEDULE 9.02 lists Seller Disclosure Schedule Section 9.01(a) contains a correct and complete list identifying each Employee Plan that material "employee benefit plan", as defined in Section 3(3) of ERISA, each employment, severance or similar contract, plan, arrangement or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, severance benefits, retirement benefits, health, or medical or other employee benefits which is maintained, administered or contributed to by Seller or any Affiliates of Seller and covers any employee or former employee of the CompanyBusiness. Copies of such plans (and, copies if applicable, related trust or funding agreements or insurance policies) and descriptions of all of which amendments thereto and written interpretations thereof have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent Buyer together with complete age, salary, service and related data as of the most recent practicable date for employees of annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the Company"Employee Plans".
(b) SCHEDULE 9.02 also includes Neither Seller nor any ERISA Affiliate of Seller has (i) engaged in, or is a list successor or parent corporation to an entity that has engaged in, a transaction described in Sections 4069 or 4212(c) of each Benefit Arrangement ERISA or (ii) incurred, or reasonably expects to incur prior to the Closing Date, (A) any liability under Title IV of ERISA arising in connection with the termination of, or a complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA or (B) any liability under Section 4971 of the Company, copies and descriptions Code that in either case could become a liability of which have been made available Buyer or furnished previously to Parentany of its ERISA Affiliates after the Closing Date.
(c) None of Seller, any ERISA Affiliate of Seller and any predecessor thereof contributes to, or has in the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers past contributed to, any non-United States employee or former employee multiemployer plan, as defined in Section 3(37) of the CompanyERISA (a "Multiemployer Plan").
(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) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(f) Each Employee Plan which that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during received a favorable determination letter, or has pending or has time remaining in which to file, an application for such determination from the period from its adoption to dateInternal Revenue Service, and each trust forming a part thereof Seller is exempt from tax pursuant not aware of any reason why any such determination letter should be revoked or not be reissued. Seller has made available to Section 501(a) of the Code. The Company has furnished to Parent Buyer copies of the most recent Internal Revenue Service determination letters with respect to each such planEmployee Plan. Each Employee Plan has been maintained in material 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 such planEmployee Plan.
(g) Each Benefit Arrangement has 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.
(h) With respect to 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.
(i) 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 as disclosed in writing to Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder or any of their 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 the year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(n) 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.
(o) 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 hereby.
Appears in 1 contract
ERISA Representations. The Company and Stockholdereach Seller, jointly and severally, hereby represent and warrant to Parent the Buyer as of the date hereof that:
(a) SCHEDULE 9.02 Schedule 10.01 lists each Employee Plan that covers any employee of the CompanyEmployee, copies and descriptions of all of which which, and a summary plan description of each, have previously been made available or furnished to ParentBuyer. With respect to each 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 the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the CompanyForm 5500.
(b) SCHEDULE 9.02 Schedule 10.01 also includes a list of each Benefit Arrangement of the Company, copies and or descriptions of which have been made available or furnished previously to ParentBuyer.
(c) None of the Employee Plans or other arrangements Benefit Arrangements listed on SCHEDULE 9.02 covers Schedule 10.01 is subject to the laws of any non-jurisdiction outside the United States employee or former employee of the CompanyStates.
(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) No plan Neither the Company, nor any ERISA Affiliate maintains or arrangement listed on Schedule 9.02 is a has ever maintained or contributed to or expects to incur liability with respect to any Multiemployer PlanPlan or Employee Plan subject to Title IV of ERISA. Neither the Company Company, nor any Subsidiary or ERISA Affiliate has ever contributed incurred nor does it reasonably expect to or had an obligation to contribute incur any liability with respect to any Multiemployer Plantransaction 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. The Company has furnished to Parent the Buyer copies of the most recent Internal Revenue Service determination letters or opinion letter with respect to each such planEmployee Plan. Each Employee Plan and Benefit Arrangement has been maintained in compliance with its terms and with the applicable requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan.
(g) Each Benefit Arrangement has 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.
(h) With respect to the employees Employees and former employees of the CompanyEmployees, there are no employee post-retirement medical health or health 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 a group health plan, as defined in Section 5000(b)(1) of the Code.
(ih) 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 as disclosed in writing to Parent prior to the date hereof, there There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder or any of their its respective 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 the fiscal year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(n) 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.
(oi) Except as set forth disclosed on SCHEDULE 9.02Schedule 10.01, no employee of the Company Employee will become entitled to any material bonus, retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated herebyhereby (each such disclosed payment being a “Transaction Bonus”). The Sellers agree that all Transaction Bonuses shall be for the account of the Sellers and not of the Company and shall be paid by the Sellers.
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ERISA Representations. The Company and Stockholder, jointly and severally, hereby represent and warrant to Parent that:
(a) SCHEDULE 9.02 lists Schedule 3.11 sets forth each Employee Plan "employee benefit plan", as defined in Section 3(3) of ERISA, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company or any of its ERISA Affiliates and (iii) covers any employee of the Company, copies and descriptions of all of which have previously been made available or furnished to Parent. With respect to each Employee Plan, the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the Company.
(b) SCHEDULE 9.02 also includes a list of each Benefit Arrangement of the Company, copies and descriptions of which have been made available or furnished previously to Parent.
(c) None of the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the CompanyCompany or any Subsidiary. Such plans are hereinafter referred to as the "EMPLOYEE PLANS". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the Code.
(db) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee PlanPlan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be material.
(e) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan.
(fc) Each Employee Plan which that 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 created under any such Employee Plan is exempt from tax pursuant to under Section 501(a) of the CodeCode and has been so exempt during the period from creation to date. The Company has furnished to Parent copies of provided the Investors or their counsel with the most recent determination letters of the Internal Revenue Service determination letters with respect relating to each such planEmployee Plan. Each Employee Plan 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, which are applicable to such plan.
(gd) Schedule 3.11 sets forth each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. 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 which are applicable to such Benefit Arrangementregulations.
(h) With respect to 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.
(i) 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 as disclosed in writing to Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company, Stockholder or any of their 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 the year ended prior to the date hereof.
(j) As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as determined on a termination basis using the assumptions established by the PBGC as in effect on that date. No Defined Benefit Plan (other than the Rescon, Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate.
(k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending.
(le) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) its ERISA Affiliates has any current or (o) of Section 414 of the Code) has incurred any projected liability in connection with the termination respect of a pension plan subject to Title IV of ERISA, the complete post-employment or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date.
(m) There is no contract, agreement, plan or arrangement covering any employee post-retirement welfare benefits for retired or former employee employees of the Company that, individually or collectively, could give rise to the payment of and any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
(n) 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.
(o) 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 hereby.Subsidiary,
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