Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus payments) of more than EUR 100,000 individually, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. Correct, complete and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employment. (b) Schedule 2.12(b) of the Company Disclosure Letter contains with respect to each of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws. (c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws. (d) Schedule 2.12(d) of the Company Disclosure Letter lists, as of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) and any other Applicable Law, (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangements, (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired Company.
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Samples: Share Purchase Agreement (Applovin Corp), Share Purchase Agreement (Applovin Corp)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus paymentsOther than as listed in Schedule 2.11(a) of more than EUR 100,000 individuallythe Seller Disclosure Letter, to the extent that an employment agreement was entered into, all current and former employees of the Company or its Subsidiaries have signed an employment agreement substantially in one of the forms delivered or made available to Parent. Except as listed in Schedule 2.11(a) of the Seller Disclosure Letter, as of September 9, 2020, to the Knowledge of the Company no current management-level employee has given notice to, or (ii) intends to, terminate employment with the status of managing directors (GeschäftsführerCompany and/or applicable Subsidiary. Other than as listed in Schedule 2.11(a) or equivalent pursuant to local law are the “Key Employees”. Correct, complete and up-to-date copies of the employment or service agreements with Seller Disclosure Letter, all U.S. Employees are terminable at will without liability to the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employmentany Subsidiary.
(b) Except as would not reasonably be expected to cause material Liability to the relevant engaging entity of such Person, all current and former Persons providing services to the Company or any of its Subsidiaries were and are rightly classified as independent contractors, consultants or employees and all current and former employees were and are rightly classified as “exempt” or “non-exempt” for all purposes (including for purposes of Company Employee Plans) and no current or former consultant agreements contain provisions which state that an employer-employee relationship exists between such Persons and the Company or the applicable Subsidiary thereof. Except as listed in Schedule 2.12(b2.11(b) of the Seller Disclosure Letter, neither the Company Disclosure Letter contains with respect to each nor any of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of its Subsidiaries engages any Acquired Company pursuant to the applicable local lawspersonnel through manpower agencies.
(c) Schedule 2.12(c2.11(c)(i) of the Company Seller Disclosure Letter containscontains a complete and accurate list of all material Company Employee Plans; provided, however, that, Schedule 2.11(c)(i) of the Seller Disclosure Letter need not list (i) individualized Contracts with respect to each Company Equity Awards that are consistent in all material respects with a standard form of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to award agreement under the applicable local laws.
Company Equity Plan, (dii) individual employment, individual consulting, repatriation or expatriation agreements or management Contracts that are consistent in all material respects with a standard form of employment, individual consulting, repatriation or expatriation agreement or management agreement, in each case; provided, that, the form of such agreement is disclosed on Schedule 2.12(d2.11(c) of the Company Seller Disclosure Letter listsand has been provided to Parent, as or (iii) participant loans permitted under a plan intended to be Tax-qualified under Section 401(a) of the Original Agreement DateCode. For purposes of this Agreement, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) means, collectively, all “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 ERISA) and: (“ERISA”i) and any other Applicable Law, (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock share option, stock share purchase, phantom stockshare, virtual share (including the VSOPs), stock appreciation right, restricted stock share unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, insurance or accident insurance or similar employee benefit plans, programs or arrangements, ; (ivii) all material bonus, commissionpension, profit sharing, savings, change of control, retention, severance, repatriation, expatriation, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, ; and (viii) all other material contractual fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwisearrangements, in each case, as to which any unsatisfied obligations of an Acquired Company remain ; and (iv all employment agreements for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired Company.U.S. Employees,
Appears in 2 contracts
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus paymentsOther than as listed in Schedule 2.11(a) of more than EUR 100,000 individuallythe Seller Disclosure Letter, to the extent that an employment agreement was entered into, all current and former employees of the Company or its Subsidiaries have signed an employment agreement substantially in one of the forms delivered or made available to Parent. Except as listed in Schedule 2.11(a) of the Seller Disclosure Letter, as of September 9, 2020, to the Knowledge of the Company no current management-level employee has given notice to, or (ii) intends to, terminate employment with the status of managing directors (GeschäftsführerCompany and/or applicable Subsidiary. Other than as listed in Schedule 2.11(a) or equivalent pursuant to local law are the “Key Employees”. Correct, complete and up-to-date copies of the employment or service agreements with Seller Disclosure Letter, all U.S. Employees are terminable at will without liability to the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employmentany Subsidiary.
(b) Except as would not reasonably be expected to cause material Liability to the relevant engaging entity of such Person, all current and former Persons providing services to the Company or any of its Subsidiaries were and are rightly classified as independent contractors, consultants or employees and all current and former employees were and are rightly classified as “exempt” or “non-exempt” for all purposes (including for purposes of Company Employee Plans) and no current or former consultant agreements contain provisions which state that an employer-employee relationship exists between such Persons and the Company or the applicable Subsidiary thereof. Except as listed in Schedule 2.12(b2.11(b) of the Seller Disclosure Letter, neither the Company Disclosure Letter contains with respect to each nor any of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of its Subsidiaries engages any Acquired Company pursuant to the applicable local lawspersonnel through manpower agencies.
(c) Schedule 2.12(c2.11(c)(i) of the Company Seller Disclosure Letter containscontains a complete and accurate list of all material Company Employee Plans; provided, however, that, Schedule 2.11(c)(i) of the Seller Disclosure Letter need not list (i) individualized Contracts with respect to each Company Equity Awards that are consistent in all material respects with a standard form of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to award agreement under the applicable local laws.
Company Equity Plan, (dii) individual employment, individual consulting, repatriation or expatriation agreements or management Contracts that are consistent in all material respects with a standard form of employment, individual consulting, repatriation or expatriation agreement or management agreement, in each case; provided, that, the form of such agreement is disclosed on Schedule 2.12(d2.11(c) of the Company Seller Disclosure Letter listsand has been provided to Parent, as or (iii) participant loans permitted under a plan intended to be Tax-qualified under Section 401(a) of the Original Agreement DateCode. For purposes of this Agreement, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) means, collectively, all “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 ERISA) and: (“ERISA”i) and any other Applicable Law, (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock share option, stock share purchase, phantom stockshare, virtual share (including the VSOPs), stock appreciation right, restricted stock share unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, insurance or accident insurance or similar employee benefit plans, programs or arrangements, ; (ivii) all material bonus, commissionpension, profit sharing, savings, change of control, retention, severance, repatriation, expatriation, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, ; and (viii) all other material contractual fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwisearrangements, in each case; and (iv all employment agreements for the U.S. Employees, as (A) that is maintained, sponsored or contributed to which by the Company or any unsatisfied obligations of an Acquired Company remain its Subsidiaries for the benefit of, or relating to, of any present or former employee, consultant individual consultant, individual independent contractor or non-employee director thereof or (B) as to which the Company or any of its Subsidiaries have incurred any unsatisfied liabilities or obligations but (C) excluding plans, programs or arrangements (1) that are sponsored or maintained by a Governmental Entity, (2) that are sponsored or maintained by a Person other than the Company or any of its Subsidiaries pursuant to a collective bargaining agreement, works council arrangement or other labor union Contract (provided, that, this clause (2) shall apply only with respect to plans, programs and arrangements in which all participants are employed or engaged outside of the United States), (3) with respect to which the employer’s sole obligation is to make contributions in the form of payroll or other Taxes, or (4) dedicated primarily to ISG and/or the TD Entities and assumed in their entirety (including with respect to all obligations and Liabilities thereunder) by Sellers or their Affiliates (other than the Company or its Subsidiaries) in the Reorganizations. Except as disclosed in Schedule 2.11(c)(ii) of the Seller Disclosure Letter, neither the Company nor any of its Subsidiaries has any plan or commitment to adopt or enter into any additional material Company Employee Plan or to amend or terminate any existing material Company Employee Plan. Neither the Company nor any of its Subsidiaries is, or has at any time been, the employer or “connected with” or an Acquired Company“associate of” (as those terms are used in the Pensions Xxx 0000 of the United Kingdom) the employer of a United Kingdom defined benefit pension plan.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) All individuals employed by Schedule 3.17(a) to the Acquired Companies (i) Acquiror Disclosure Letter lists, with an annual gross fixed salary (excluding bonus payments) of more than EUR 100,000 individually, or (ii) with respect to the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. Correct, complete Acquiror and up-to-date copies any ERISA Affiliate of the employment or service agreements with the Key Employees have been disclosed. None Acquiror, each of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Acquiror Employee has threatened or otherwise announced to terminate his/her employmentPlans.
(b) Schedule 2.12(b) The Acquiror has provided or made available to the Company a true, correct and complete copy of each of the Company Disclosure Letter contains Acquiror Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to each Acquiror Employee Plan which is subject to ERISA reporting requirements, provided to the Company true, correct and complete copies of the Acquired Companies Form 5500 reports filed for the last three plan years. Any Acquiror Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter before the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. The Acquiror has also provided or made available to the Company a true, correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Acquiror Employee Plan, and nothing has occurred since the issuance of each such letter which would reasonably be expected to cause the loss of the Tax-qualified status of any Acquiror Employee Plan subject to Section 401(a) of the Code.
(c) None of the Acquiror Employee Plans promises or provides retiree medical or other retiree welfare benefits to any Person other than as required under COBRA or similar state law. There has been no material “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Acquiror Employee Plan. Each Acquiror Employee Plan has been administered in all material respects in accordance with its terms and in material compliance with the requirements prescribed by any and all statutes of the Acquiror, rules and regulations (including ERISA and the Code), and the Acquiror and each ERISA Affiliate of the Acquiror has performed all material obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Acquiror Employee Plans. Neither the Acquiror nor any ERISA Affiliate of the Acquiror is subject to any Liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Acquiror Employee Plans. All contributions required to be made by the Acquiror or any ERISA Affiliate of the Acquiror to any Acquiror Employee Plan have been made on or before their due dates and a reasonable amount has been accrued for contributions to each Acquiror Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business, consistent with past practice, after the Acquiror Balance Sheet Date as a result of the operations of the Acquiror after the Acquiror Balance Sheet Date). Each Acquiror Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms and applicable Legal Requirements, without Liability to the Acquiror or the Surviving Company (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action or other litigation has been brought, or, to the knowledge of the Acquiror, is threatened, against or with respect to any such Acquiror Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Acquiror nor any current or former ERISA Affiliate of the Acquiror currently maintains, sponsors, participates in, has liability under, or contributes to, or has ever maintained, established, sponsored, participated in, had liability under, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code or any “multiple employer plan,” as such term is defined in Section 413(c) of the Code.
(e) The Acquiror does not maintain or contribute to any Foreign Plan.
(f) Except as set forth in Schedule 3.17(f) to the Acquiror Disclosure Letter, none of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated hereby or any termination of employment or service as a consequence thereof will, individually or together with the occurrence of some other event, (i) result in any material payment (including severance, golden parachute, or bonus or otherwise) becoming due to any Person who is employed or retained by the Acquiror, except for unemployment compensation or similar payments, (ii) materially increase or otherwise enhance any benefits otherwise payable by the Acquiror, (iii) result in the acceleration of the time of payment or vesting of any such benefits, except as required under Section 411(d)(3) of the Code, (iv) materially increase the amount of compensation due to any Person who is employed or retained by the Acquiror, or (v) result in the forgiveness in whole or in part of any material outstanding loans made by the Acquiror to any Person.
(g) The Acquiror is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, except for such instances of noncompliance which would not have, individually or in the aggregate, an Acquiror Material Adverse Effect. Except as set forth in Schedule 3.17(g) to the Acquiror Disclosure Letter, there are no controversies pending or, to the knowledge of the Acquiror, threatened, between the Acquiror and any of its employees, which controversies have or would reasonably be expected to result in any material action, suit, proceeding, complaint, claim, arbitration or investigation before any Governmental Entity.
(h) The Acquiror has no obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) for which the Acquiror has established a reserve for such amount on the Acquiror Balance Sheet, (ii) pursuant to Contracts disclosed on Schedule 3.17(h) to the Acquiror Disclosure Letter, and (iii) which would not have, individually or in the aggregate, an Acquiror Material Adverse Effect. As of the Agreement Date, there is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Acquiror. As of the Agreement Date, there is no labor dispute, strike or work stoppage against the Acquiror pending or, to the knowledge of the Acquiror, threatened in writing which could reasonably be expected to interfere with the business activities of the Acquiror. As of the Agreement Date, there is no charge or complaint against the Acquiror by the National Labor Relations Board or any comparable Governmental Entity pending or, to the knowledge of the Acquiror, threatened in writing.
(i) To the knowledge of the Acquiror, no employee of the Acquiror is in violation of any term of any employment agreement, patent disclosure agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Acquiror because of the nature of the business conducted by the Acquiror or to the use of trade secrets or proprietary information of others. Except as described in Schedule 3.17(i) to the Acquiror Disclosure Letter, the employment of each of the employees of the Acquiror is “at will.”
(j) The Acquiror has furnished or made available to the Company a true, correct and complete list of the individual names, positions, rates of compensation, severance rights and other compensation of all officers, directors, and employees of the Acquiror, showing each such Person’s name, position, annual remuneration, status as exempt/non-exempt, bonuses and fringe benefits for the current fiscal year and the most recently completed fiscal year.
(k) The Acquiror has furnished or made available to the Company a true, correct and complete list of all of its current key consultants, key advisory board members and key independent contractorscontractors and for each the initial date of the engagement.
(l) The Acquiror has furnished or made available to the Company true, correct and complete copies of each of the following: all material employment agreements and severance agreements; all material agreements with current consultants, advisory board members and/or independent contractors; all forms of confidentiality, non-competition or inventions agreements between current employees/consultants and individual consultants who are active the Acquiror; the most current management organization chart(s); all agreements and/or insurance policies providing for such Acquired Company as the indemnification of any officers or directors of the Original Agreement DateAcquiror; summary of Liability for termination payments to current and former directors, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto officers and applicable notice or termination provisions and state/locality and country in which engaged. None employees of the current independent contractors Acquiror; and consultants and none a schedule of bonus commitments made to employees of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsAcquiror.
(cm) The Acquiror is in compliance in all material respects with the WARN Act or any similar state or local law. In the past two years, and except as set forth in Schedule 2.12(c3.17(m) to the Acquiror Disclosure Letter (i) the Acquiror has not effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business; (ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of the Company Disclosure Letter containsAcquiror; and (iii) the Acquiror has not been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, with respect local or foreign law or regulation. The Acquiror has not caused any of its employees to each of suffer an “employment loss” (as defined in the Acquired Companies an anonymized list of leased employees (LeiharbeitnehmerWARN Act) who are deployed by such Acquired Company as of during the Original 90-day period before the Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(dn) Schedule 2.12(d) No payment that is owed or may become due to any director, officer, employee, or agent of the Company Disclosure Letter lists, as Acquiror will be non-deductible to the Acquiror under Code Section 280G or Section 4999; nor will the Acquiror be required to “gross up” or otherwise compensate any such person because of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule imposition of any jurisdiction. “Company Employee Plans” means excise tax on a payment to such person.
(io) all “employee benefit plans” within All Acquiror Options have been duly authorized by the meaning of Section 3(3) Acquiror Board or an appropriate committee thereof, including approval of the Employee Retirement Income Security Act of 1974 (“ERISA”) option exercise price or the methodology for determining the option exercise price and any other Applicable Law, (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangements, (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit ofsubstantive option terms. No Acquiror Options have been retroactively granted, or relating to, the exercise price of any present or former employee, consultant or non-employee director of an Acquired CompanyAcquiror Option determined retroactively.
Appears in 1 contract
Samples: Merger Agreement (Mathstar Inc)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (iThe “Employee Schedule” attached hereto as Schedule 2.19(a) with an annual gross fixed salary (excluding bonus payments) of more than EUR 100,000 individually, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. Correct, sets forth a complete and up-to-date copies accurate list of each current employee of the employment Seller or service agreements with any Affiliate thereof that renders any services to the Key Employees have been disclosed. None CryoScience Business, including in each case such employee’s name, title, employer and current annual compensation rate (including bonus and commissions), and a notation as to whether such Person renders services exclusively for the CryoScience Business or any other business division of the current Key Employees has given Seller or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employmentany Affiliate thereof.
(b) The “Benefit Plan Schedule” attached hereto as Schedule 2.12(b2.19(b) sets forth a complete and accurate list of the Company Disclosure Letter contains (i) all Employee Plans, and (ii) all employment, termination, severance or other contracts, agreements or arrangements, pursuant to which Seller has any obligation with respect to each any current or former employee, officer or director of the Acquired Companies CryoScience Business (collectively, the “Employee Plans”), complete and correct copies of which have been made available to the Buyer. Except for the Labor Agreement between Seller and complete list Local 441 Sheet Metal Workers International Association, effective as of November 18, 2012, or as set forth on Schedule 2.19(b), Seller is not a party to any collective bargaining agreement with respect to employees, and no collective bargaining agreement is currently being negotiated by Seller, nor is Seller under or subject to any duty to recognize and/or bargain with any labor organization. Each of the individual independent contractorsEmployee Plans comply and have complied with the all Applicable Laws and Tax requirements. There are no actions, advisory board members and individual consultants who are active suits or claims (other than routine claims for such Acquired Company as benefits) pending or, to the Seller’s Knowledge, threatened against or with respect to any of the Original Agreement DateEmployee Plans or the assets of any of them. Except as set forth on Schedule 2.19(b), setting out all contributions required, by Applicable Law or by Contract, to be made to any Employee Plan have been made, and all amounts required to be contributed by the department, fees, initial date Seller or which may accrue in respect of engagement, service rendered, whether such engagement has any period prior to Closing under any Employee Plan will have been terminated made by written notice by either party thereto and applicable notice the Seller on or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsClosing Date.
(c) Schedule 2.12(cEach Employee Plan which is intended to be qualified within the meaning of Section 401(a) of the Company Disclosure Letter containsCode has been determined by the IRS to be qualified, with respect and no event has occurred since the date of any such determination that could reasonably be expected to each give the IRS grounds to revoke such determination or to conclude that the Employee Plan is not qualified under Section 401(a) of the Acquired Companies an anonymized list Code. No liability under Title IV of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as ERISA has been incurred and no condition exists that presents a risk of the Original Agreement Date, setting out the department, provider, fees and service rendered. None Seller or any Affiliate thereof incurring any liability under Title IV of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsERISA.
(d) Schedule 2.12(d) To the Knowledge of Seller, no officer, director, agent, employee, consultant, or contractor of the Company Disclosure Letter listsCryoScience Business is bound by any Contract that purports to limit the ability of such officer, as director, agent, employee, consultant, or contractor (i) to engage in or continue or perform any conduct, activity, duties or practice relating to the CryoScience Business of Seller or (ii) to assign to Seller or to any other Person any rights to any invention, improvement, or discovery. To the Knowledge of the Original Agreement DateSeller, no former or current employee of the CryoScience Business is a party to, or is otherwise bound by, any Contract that in any way adversely affected, affects, or will affect the ability of the Seller or the Buyer to conduct the CryoScience Business as heretofore carried on by Seller.
(e) Other than the obligations set forth in the Seller’s collective bargaining agreement, a true and complete copy of which has been made available to the Buyer, the Seller does not have any contractual obligation to pay any employees, contractors or other service providers of the CryoScience Business any severance or similar benefits in connection with their termination of employment or service.
(f) Seller has complied in all material respects with all Applicable Laws with respect to the Acquired Companies employment of labor, including, but not limited to, those relating to employment practices, terms and conditions of employment, hiring, wages and hours, discrimination in employment, collective bargaining and the operation of the CryoScience Business and the payment and withholding of any and all Company Employee PlansTaxes, and separately identifies each Company Employee Plan sponsoredthere is no grievance, maintained arbitration, sexual harassment or contributed other employment-related complaint or proceeding pending, or, to under the law Knowledge of the Seller, threatened against Seller or applicable custom the CryoScience Business or rule of any jurisdiction. “Company Employee Plans” means officer, director or employee thereof.
(g) There are no (i) all “employee benefit plans” within strikes, work stoppages, work slowdowns or lockouts pending or, to the meaning Knowledge of Section 3(3) of Seller, threatened against or involving Seller or the Employee Retirement Income Security Act of 1974 (“ERISA”) and any other Applicable Law, CryoScience Business or (ii) each outstanding loan from an Acquired Company union organization campaigns or disputes concerning representation with respect to an employee employees pending or, to the Knowledge of such Acquired Company that Seller, threatened. Seller has an outstanding balance, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance not experienced any labor dispute or similar employee benefit plans, programs or arrangements, (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performancework-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rightsstoppage at any time in the last five (5) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired Companyyears.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding Schedule 5.20 lists each pension, retirement, profit sharing, deferred compensation, bonus payments) of more than EUR 100,000 individuallyand other incentive plan, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. Correctother employee benefit programs, complete arrangements, agreements and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of terminationunderstandings, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Furthermedical, no Key Employee has threatened or otherwise announced to terminate his/her employment.
(b) Schedule 2.12(b) of the Company Disclosure Letter contains with respect to each of the Acquired Companies correct vision, dental and complete list of the individual independent contractorsother health plans, advisory board members life insurance and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) of the Company Disclosure Letter lists, as of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plansdisability plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) all “other employee benefit plans” within the meaning of , employment contracts and severance agreements including, without limitation, any "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”") to which Seller contributes or is a party or is bound or under which it may have liability and under which employees or former employees of the Business (or their beneficiaries) are eligible to participate or derive a benefit ("Employee Benefit Plans"). Seller has delivered to Purchaser true, correct and complete copies of all Employee Benefit Plans. There are no claims, pending or threatened, based on asbestosis, carpal tunnel syndrome, hearing loss or impairment, extensive back injury or any other Applicable Lawexposure or alleged exposure to cumulative trauma injuries or exposures, and there is no basis for the same.
(b) All contributions required by law or collective bargaining agreement to have been made under any of the Employee Benefit Plans (without regard to any funding waivers granted under applicable law) to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension). Neither the Seller nor any of the Purchased Assets is subject to any liability for or any lien with respect to any of the following: (i) excise taxes imposed under Chapter 43 of the Internal Revenue Code of 1986, as amended (the "Code"); (ii) each outstanding loan from an Acquired Company liability to an employee the PBGC under Title IV of such Acquired Company that has an outstanding balance, ERISA; (iii) liability under ERISA Section 502 (other than claims for benefits in the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance ordinary course) or similar employee benefit plans, programs or arrangements, Section 4071; (iv) all material bonusliability imposed under Title IV, commission, profit sharing, savings, severance, retirement, deferred compensation Subtitle E of ERISA with respect to any "multiemployer plan" as defined in Section 3(37)(A) of ERISA; or incentive plans (including cash incentive plans), programs or arrangements, (v) all liability arising as the result of a failure to make required contributions under Section 412 of the Code or Section 302 of ERISA. No Employee Benefit Plan is a "welfare benefit plan" within the meaning of Section 3(l) of ERISA that provides for continuing benefits or coverage for any participant or any beneficiary of a participant after the participant's retirement or other material fringe termination of employment, except as may be required under Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA and proposed regulations thereunder and at the sole expense of the participant or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired Companyparticipant's beneficiary.
Appears in 1 contract
Samples: Asset Purchase Agreement (Biochem International Inc)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (iSchedule 2.18(a) with an annual gross fixed salary (excluding bonus payments) of more than EUR 100,000 individually, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. Correct, complete and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employment.
(b) Schedule 2.12(b) of the Company Disclosure Letter contains with respect to each of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) of the Company Disclosure Letter lists, as with respect to the Company and any ERISA Affiliate of the Original Agreement DateCompany, each of the Company Employee Plans.
(b) The Company has provided or made available to the Acquiror a true, correct and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan which is subject to ERISA reporting requirements, provided to the Acquiror true, correct and complete copies of the Form 5500 reports filed for the last three plan years. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter before the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. The Company has also provided or made available to the Acquiror a true, correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Company Employee Plan, and nothing has occurred since the issuance of each such letter which would reasonably be expected to cause the loss of the Tax-qualified status of any Company Employee Plan subject to Section 401(a) of the Code.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any Person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or similar state law. There has been no material “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in all material respects in accordance with its terms and in material compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate of the Company has performed all material obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. Neither the Company nor any ERISA Affiliate of the Company is subject to any Liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Company Employee Plans. All contributions required to be made by the Company or any ERISA Affiliate of the Company to any Company Employee Plan have been made on or before their due dates and a reasonable amount has been accrued for contributions to each Company Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business, consistent with past practice, after the Company Balance Sheet Date as a result of the operations of the Company after the Company Balance Sheet Date). Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms and applicable Legal Requirements, without Liability to the Acquiror or the Surviving Company (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action or other litigation has been brought, or, to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor any current or former ERISA Affiliate of the Company currently maintains, sponsors, participates in, has liability under, or contributes to, or has ever maintained, established, sponsored, maintained participated in, had liability under, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code or any “multiemployer plan,” as such term is defined in Section 3(37) of ERISA, or any “multiple employer plan,” as such term is defined in Section 413(c) of the Code.
(e) Except as set forth in Schedule 2.18(e) to the Company Disclosure Letter, none of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated hereby or any termination of employment or service as a consequence thereof will, individually or together with the occurrence of some other event, (i) result in any material payment (including severance, golden parachute, or bonus or otherwise) becoming due to any Person who is employed or retained by the Company, except for unemployment compensation or similar payments, (ii) materially increase or otherwise enhance any benefits otherwise payable by the Company, (iii) result in the acceleration of the time of payment or vesting of any such benefits, except as required under Section 411(d)(3) of the Code, (iv) materially increase the amount of compensation due to any Person who is employed or retained by the Company, or (v) result in the forgiveness in whole or in part of any material outstanding loans made by the Company to any Person.
(f) Except as set forth in Schedule 2.18(f) to the Company Disclosure Letter, neither the Company nor any Company Subsidiary maintains or contributes to any material compensation and benefit plan under the law or applicable custom or rule of a relevant jurisdiction outside of the United States (a “Foreign Plan”).
(g) The Company and each Company Subsidiary are in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, except for such instances of noncompliance which would not have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth in Schedule 2.18(g) to the Company Disclosure Letter, there are no controversies pending or, to the knowledge of the Company, threatened, between the Company and any jurisdiction. “of its employees, except for such controversies which would not have a Company Employee Plans” means Material Adverse Effect.
(h) The Company has no obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) all “employee benefit plans” within for which the meaning of Section 3(3) of Company has established a reserve for such amount on the Employee Retirement Income Security Act of 1974 (“ERISA”) and any other Applicable LawCompany Balance Sheet, (ii) each outstanding loan from an Acquired pursuant to Contracts disclosed on Schedule 2.18(g) to the Company to an employee of such Acquired Company that has an outstanding balanceDisclosure Letter, and (iii) which would not have, individually in the aggregate, a Company Material Adverse Effect. As of the Agreement Date, there is no pending demand for recognition or any other than request or demand from a labor organization for representative status with respect to any Person employed by the Company Option Planor any Company Subsidiary. As of the Agreement Date, there is no labor dispute, strike or work stoppage against the Company or any Company Subsidiary pending or, to the knowledge of the Company, threatened in writing which could reasonably be expected to interfere with the business activities of the Company or any Company Subsidiary. As of the Agreement Date, there is no charge or complaint against the Company by the National Labor Relations Board or any comparable Governmental Entity pending or, to the knowledge of the Company, threatened in writing.
(i) To the knowledge of the Company, no employee of the Company is in violation of any material term of any employment agreement, patent disclosure agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the business conducted by the Company or to the use of trade secrets or proprietary information of others. Except as set forth in Schedule 2.18(i) to the Company Disclosure Letter, the employment of each of the employees of the Company is “at will” (except for non-U.S. employees of the Company located in a jurisdiction that does not recognize the “at will” employment concept).
(j) The Company has furnished or made available to the Acquiror a true, correct and complete list of the names, positions, rates of compensation, severance rights and other compensation of all stock optionofficers, stock purchasedirectors, phantom stockand key employees of the Company, virtual share showing each such Person’s name, position, annual remuneration, status as exempt/non-exempt, bonuses and fringe benefits for the current fiscal year and the most recently completed fiscal year.
(including k) The Company has furnished or made available to the VSOPsAcquiror a true, correct and complete list of all of its current key consultants, key advisory board members and key independent contractors and for each the initial date of the engagement.
(l) The Company has furnished or made available to the Acquiror true, correct and complete copies of each of the following: all material employment agreements and severance agreements between the Company and its employees, consultants, advisory board members and independent contractors; all material agreements between the Company and its current consultants, advisory board members and independent contractors; all forms of confidentiality, non-competition or inventions agreements between the Company and its current employees, consultants, advisory board members and independent contractors; the most current management organization chart(s); all agreements and/or insurance policies providing for the indemnification of any officers or directors of the Company; summary of Liability for termination payments to current and former directors, officers and employees of the Company; and a schedule of bonus commitments made to employees of the Company. All of the Company’s current and past employees, consultants, advisory board members and independent contractors have signed confidentiality, non-competition and inventions agreements in the forms furnished or made available by the Company to the Acquiror.
(m) The Company is in compliance in all material respects with the Worker Adjustment Retraining Notification Act of 1988, as amended (“WARN Act”), stock appreciation rightor any similar state or local law. In the past two years, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangementsexcept as set forth on Schedule 2.18(m) to the Company Disclosure Letter, (ivi) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation the Company has not effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or incentive plans one or more facilities or operating units within any site of employment or facility of its business; (including cash incentive plans), programs ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether facility of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, the Company; and (viiii) all the Company has not been affected by any transaction or engaged in layoffs or employment and individual consultingterminations sufficient in number to trigger application of any similar state, retentionlocal or foreign law or regulation. The Company has not caused any of its employees to suffer an “employment loss” (as defined in the WARN Act) during the 90-day period before the Agreement Date.
(n) No payment that is owed or may become due to any director, change of control or executive compensation or severance agreementsofficer, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit ofemployee, or relating to, any present or former employee, consultant or agent of the Company will be non-employee director deductible to the Company under Code Section 280G or Section 4999; nor will the Company be required to “gross up” or otherwise compensate any such person because of the imposition of any excise tax on a payment to such person.
(o) All Company Options have been duly authorized by the Company Board or an Acquired Companyappropriate committee thereof, including approval of the option exercise price or the methodology for determining the option exercise price and the substantive option terms. No Company Options have been retroactively granted, or the exercise price of any Company Option determined retroactively.
Appears in 1 contract
Samples: Merger Agreement (Mathstar Inc)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus paymentsSchedule 2.13(a) of more than EUR 100,000 individuallythe Disclosure Letter sets forth a complete list of all Company Employees, together with their titles, service dates and material terms of employment, including current wages, salaries or hourly rate of pay, benefits, vacation entitlement, commissions and bonus (whether monetary or otherwise) or other material compensation paid since the beginning of the most recently completed fiscal year or payable to each such Employee. Schedule 2.13(a) of the Disclosure Letter also lists, if applicable, all Employees on inactive status, including lay-off, short-term disability leave, long-term disability leave, pregnancy and parental leave or other extended absences, or (ii) with the status of managing directors (Geschäftsführer) or equivalent receiving benefits pursuant to local law are workers’ compensation legislation, and specifies the “Key Employees”. Correctlast date of active employment, complete the reason for the absence and up-to-the expected date copies of the employment or service agreements with the Key Employees have been disclosed. None return of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employmenteach such Employee.
(b) Schedule 2.12(b2.13(b) of the Company Disclosure Letter contains with respect to each of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) of the Company Disclosure Letter lists, as of the Original Agreement Dateif applicable, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) and any other Applicable Law, Benefit Plans; (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, Employee or former employee; and (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangements, (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired the Company remain for the benefit of, or relating to, any present Employee or former employee. Current and complete copies of all written Benefit Plans as amended to date or, where oral, written summaries of the terms thereof, and all booklets and communications concerning the Benefit Plans which have been provided to persons entitled to benefits under the Benefit Plans have been delivered or made available to the Buyer together with copies of all material documents relating to the Benefit Plans.
(c) Except for those written employment contracts listed in Schedule 2.13(c) of the Disclosure Letter, there are no employment contracts which are not terminable on the giving of reasonable notice in accordance with Legal Requirements.
(d) There are no claims, pending claims nor, to the knowledge of the Company, threatened claims pursuant to any Legal Requirements relating to any Employee or former employee, consultant including employment standards, human rights, labor relations, occupational health and safety, workers’ compensation, and pay equity.
(e) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, human rights in employment, pay equity, terms and conditions of employment, employment standards (including wages, hours, vacation and overtime), labour relations, worker classification (including the proper classification of workers as independent contractors and consultants, and as employees and managers), occupational health and safety, workplace safety and insurance, and employment practices and policies. The Company is not liable for any arrears of wages, severance pay or nonany Taxes or any penalty for failure to comply with any of the foregoing Legal Requirements. The Company is not liable for any material payment to any trust or other fund or to any Governmental Entity with respect to employment insurance, workplace safety and insurance, employment standards or other benefits or obligations for any of its Employees (other than routine payments to be made in the ordinary course of business and consistent with its past practice). All current assessments under workers’ compensation legislation in relation to the Company’s business have been paid or accrued by the Company. The Company has not been and is not subject to any additional or penalty assessment under such legislation which has not been paid and has not been given notice of any audit. Moreover, the Company’s accident cost experience is such that there are no pending nor, to the knowledge of the Company, potential assessments, experience rating charges or claims which could adversely affect the Company’s premium payments or accident cost experience or result in any additional payments in connection with the Company’s business. No labour organization, union or group of Employees has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed with any labor relations tribunal or authority. There are no organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or material grievances, or other labor disputes pending or threatened against or involving the Company involving or affecting any of its Employees. No union has bargaining rights in respect of the Company or its Employees. The Company is not a party to or bound by, either directly or indirectly, voluntarily or by operation of law, any collective agreement.
(f) The Company does not currently maintain nor has ever maintained a “multi-employer pension plan.”
(g) Each Benefit Plan is now and always has been established, registered, amended, funded, operated and invested in all material respects in accordance with its terms and is current with the requirements of all applicable Legal Requirements. The Company has no pension plans. Except as set forth on Schedule 2.13(g) of the Disclosure Letter, the Company has no formal plan and has made no promise or commitment, whether legally binding or not, to create any additional Benefit Plan or to improve or change the benefits provided under any Benefit Plan. All employer and employee director payments, contributions and premiums required to be remitted, paid in respect of an Acquired each Benefit Plan have been paid or remitted in a timely fashion in accordance with its terms and all Legal Requirements.
(h) None of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby will, individually or together with the occurrence of some other event, (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any Person, (ii) materially increase or otherwise enhance any benefits otherwise payable by the Company, (iii) result in the acceleration of the time of payment or vesting of any such benefits, or (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) All individuals employed Part 4.21(a) of the Disclosure Schedule sets forth a list of all material employee benefit plans, programs and arrangements (including any material “employee benefit plan” as defined in Section 3(3) of ERISA) maintained or contributed to by the Acquired Companies Group or any entity with which the Group is or would be considered a single employer under Section 414(b), (ic) with an annual gross fixed salary or (excluding bonus paymentsm) of more than EUR 100,000 individually, or the Code (ii) with the status of managing directors (Geschäftsführer“ERISA Affiliates”) or equivalent pursuant with respect to local law are which the Group or any ERISA Affiliate would reasonably be expected to have any material liability (the “Key EmployeesCompany Plans”. Correct, complete and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employment).
(b) Schedule 2.12(bWith respect to each Company Plan, the Company has delivered or otherwise made available to Parent or its counsel a true, correct and complete copy of: (i) each writing constituting a part of any written Company Plan and all amendments thereto, and all trusts or service agreements relating to the administration and recordkeeping of the Company Disclosure Letter contains Plan, and written summaries of the material terms of all unwritten Company Plans; (ii) the three most recent Annual Reports (Form 5500 Series or otherwise in a form in accordance with applicable Law) including all applicable schedules, if any, for each Company Plan that is subject to such reporting requirements; (iii) the current summary plan description and any material modifications thereto, if any, or any written summary provided to participants with respect to each of any plan for which no summary plan description exists; (iv) the Acquired Companies correct and complete list of the individual independent contractorsmost recent determination letter (or if applicable, advisory board members or opinion letter) from the IRS, if any, and individual consultants who are active any pending applications for a determination or opinion letter; and (v) all material written correspondence given to such Acquired Company as Plan, the Group or any ERISA Affiliate by the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental Authority (including any foreign Governmental Authority responsible for the Original Agreement Date, setting out regulation of such Company Plan) during the department, fees, initial three years preceding the date of engagementthis Agreement relating to such Company Plan or provided to any such entity by the Company Plan, service rendered, whether the Group or an ERISA Affiliate during the three years preceding the date of this Agreement with respect to such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsPlan.
(c) Schedule 2.12(cIn all material respects, each Company Plan has been established and maintained in accordance with its terms and in compliance with all applicable Laws, including but not limited to ERISA or the Code. The Group does not sponsor any Company Plan intended to be qualified under Section 401(a) of the Company Disclosure Letter contains, with respect Code or any trust intended to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(dqualify under Section 501(a) of the Company Disclosure Letter lists, as of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdictionCode. No “Company Employee Plans” means (i) all “employee benefit plansprohibited transaction,” within the meaning of Section 3(34975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Plan that would reasonably be expected to result in any material liability. There are no current actions, suits or claims pending, or, to the Company’s Knowledge, threatened in writing (other than routine claims for benefits) against any Company Plan or against the assets of any Company Plan. There are no material audits, inquiries or proceedings pending or, to the Company’s Knowledge, threatened in writing by any Governmental Authority with respect to any Company Plan. Neither the Group nor any ERISA Affiliate is subject to any penalty or Tax with respect to any Company Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. The Group and each ERISA Affiliate have timely made or otherwise provided for all contributions and other payments required by and due under the terms of each Company Plan. Each Company Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability to Parent, the Group or any ERISA Affiliate (other than ordinary administration expenses).
(d) Except as set forth in Part 4.21(d) of the Employee Retirement Income Security Act Disclosure Schedule, no payment or benefit which will or may be made by the Group with respect to any “disqualified individual” (as defined in Code Section 280G and the regulations thereunder) will be characterized as a parachute payment within the meaning of 1974 Code Section 280G(b)(2). There is no contract, agreement, plan or arrangement to which the Group or any ERISA Affiliates is bound to provide a gross-up or otherwise reimburse any employee for excise taxes paid pursuant to Section 4999 of the Code. The execution and delivery of this Agreement and the consummation of the Merger will not materially increase the benefits payable under any Company Plan and will not result in any acceleration of the time of payment or vesting of any material benefits under any Company Plan.
(“ERISA”e) and Neither the Group nor any other Applicable LawERISA Affiliate has or has ever sponsored, (ii) each outstanding loan from an Acquired Company contributed to, or had any obligations or incurred any liability under any employee benefit plan that is subject to an employee Title IV of such Acquired Company that has an outstanding balance, (iii) other than ERISA or Section 412 of the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share Code (including any “defined benefit plan” within the VSOPsmeaning of Section 3(35) of ERISA), stock appreciation rightor to a “multiemployer plan” within the meaning of Section 3(37) of ERISA.
(f) No Company Plan provides, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance reflects or similar employee benefit plans, programs or arrangements, represents any liability on behalf of the Group to provide post-termination: payments (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retentionseverance pay, change of control or executive compensation otherwise), equity acceleration, forgiveness of indebtedness, vesting, retiree benefits, increase in benefits or severance agreementsobligation to fund benefits, written with respect to any employee, except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or otherwiseother applicable Law.
(g) Each Company Plan, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit ofemployment agreement, or other compensation arrangement of the Group that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code has been written, executed, and operated in compliance with Section 409A of the Code and the regulations thereunder. The Group does not have any obligation to gross-up or otherwise reimburse any person for any tax incurred by such person pursuant to Section 409A or Section 280G of the Code.
(h) The Group: (i) is and at all times has been in material compliance with all applicable Laws, and with any order, ruling, decree, judgment or arbitration award of any arbitrator or any court or other Governmental Authority, respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor-related matters, including Laws, orders, rulings, decrees, judgments and awards relating toto discrimination, worker classification (including the proper classification of workers as independent contractors and consultants), wages and hours, labor relations, leave of absence requirements, occupational health and safety, privacy, harassment, retaliation, immigration, wrongful discharge or violation of the personal rights of employees, former employees or prospective employees; (ii) has withheld and reported all amounts required by any present Law or former contract to be withheld and reported with respect to wages, salaries and other payments to any employee; and (iii) has no liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or other benefits or obligations for any employee (other than routine payments to be made in the normal course of business and consistent with past practice). The Group has not effectuated a “mass layoff,” “plant closing,” partial “plant closing,” “relocation” or “termination” (each as defined in the Worker Adjustment and Retraining Notification Act or any similar legal requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Group.
(i) The Group is not and has never been a party to or otherwise bound by any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, or works council or similar body, nor is any such contract or agreement presently being negotiated, nor, to the Company’s Knowledge, is there, nor has there been in the last three years, a representation campaign with respect to any of the employees of the Group. As of the date of this Agreement, there is no pending or, to the Company’s Knowledge, threatened, labor strike, dispute, walkout, work stoppage, slow-down or lockout involving any Group Company. Neither the Group nor any of their representatives or employees has committed or engaged in any material unfair labor practice in connection with the operation of the business of the Group. There are no Legal Proceedings pending, or, to the Company’s Knowledge, threatened, relating to any Company Plan collective bargaining obligation or agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy, safety, retaliation, harassment, immigration or discrimination matter involving any employee, consultant including charges of unfair labor practices, discrimination, retaliation or non-harassment complaints.
(j) No key employee director of an Acquired Companythe Group has provided written notice to any Group Company of his or her intent to terminate his or her employment with any Group Company as of the date hereof.
Appears in 1 contract
Samples: Merger Agreement (Athenex, Inc.)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by The Acquired Companies have provided to Acquirer a true and complete list of each employee of the Acquired Companies as of the date hereof, along with such employee’s employer, hire date, location, job title, base salary or base wage rate, and status as exempt or non-exempt, full-time, part-time, temporary or seasonal (i) with an annual gross fixed salary (excluding bonus payments) of more than EUR 100,000 individually, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key EmployeesEmployee List”. Correct, complete and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employment).
(b) Other than as listed in Schedule 2.12(b2.12(a) of the Company Seller Disclosure Letter contains with respect to each Schedule, all current employees of the Acquired Companies correct and complete list or any of their respective Subsidiaries have signed an employment agreement or offer letter substantially in one of the individual independent contractorsforms delivered or made available to Acquirer. No executive, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an management-level employee (Arbeitnehmer) of any Acquired Company pursuant has informed the Seller of any plan to terminate employment with the applicable local lawsrelevant Acquired Company.
(c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect All Persons providing services to each of the Acquired Companies an anonymized list or any of leased employees their respective Subsidiaries were and are rightly classified under Applicable Law as (Leiharbeitnehmeri) who are deployed by such independent contractors, consultants or employees, (ii) “exempt” or “non-exempt” for all purposes (including for purposes of Acquired Company as of the Original Agreement DateCompanies Employee Plans), setting out the departmentor (iii) a part-time, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has temporary or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsseasonal employee.
(d) Schedule 2.12(d) of the Company Seller Disclosure Letter lists, as Schedule contains a list of the Original Agreement Date, with respect to the all material Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Acquired Companies Employee Plans” means any benefit or compensation plans, policies, programs, practices, agreements or arrangements maintained, sponsored or contributed to (or required to be contributed to) by any of the Acquired Companies or any of their respective Subsidiaries covering current or former employees of any of the Acquired Companies or any of their respective Subsidiaries or pursuant to which any Acquired Company or any of its respective Subsidiaries has any direct or contingent liabilities, including (i) all “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA whether or not subject to ERISA”) and any other Applicable Law, ); (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock share option, stock share purchase, phantom stockshare, virtual share (including the VSOPs), stock appreciation right, restricted stock share unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, insurance or accident insurance or similar employee benefit plans, programs or arrangements, ; (iviii) all material bonus, commissionpension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, ; (viv) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, arrangements; and (viv) all employment and management, employment, individual consulting, retention, change of control or executive compensation control, relocation, repatriation, expatriation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired Company.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus paymentsSection 2.14(a) of more than EUR 100,000 individually, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. CorrectCompany Disclosure Schedule contains a true, complete and up-to-date copies accurate list as of the employment or service agreements date hereof, which shall be updated on Closing, of the name, position, status, date of hire, date of birth and current monthly compensation of each and all of the employees (including but not limited to permanent employees and persons employed for a definite term) of the Company and its Subsidiaries, together with the Key Employees have been disclosed. None full amount and nature of the current Key Employees has given any other remuneration, whether in cash or received notice of terminationin kind, has entered into a termination agreement with an Acquired Company or has made or received an offer paid to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employmenteach such employee.
(b) Schedule 2.12(b) of Neither the Company Disclosure Letter contains nor any of its Subsidiaries is engaged, and has never been engaged, in any unfair labor practice of any nature. Neither the Company nor any of its Subsidiaries has not had any strike, slowdown, work stoppage, lockout, job action or threat thereof, or question concerning representation, by or with respect to each any of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsits employees.
(c) Schedule 2.12(cThe employment agreements between the Company or any of its Subsidiaries and its employees are in material compliance with Applicable Laws as well as with applicable collective bargaining agreements.
(d) None of the arrangements currently in effect regarding the provision of services to the Company or any of its Subsidiaries by any of the directors or officers of the Company contravened any Applicable Law.
(e) The Company and each of its Subsidiaries complies with all material provisions of Applicable Law, collective bargaining agreements and unilateral undertakings regarding employment and employment practices (including, without limitation, minimal wages, working time and overtime regulations, discrimination in employment, employment of senior employees, trainings rights, election of employee representatives, calculation and accrual of vacations, safety and health regulations). Neither the Company nor any of its Subsidiaries is liable for any unpaid wages, vacation pay, bonuses or for any material Taxes, penalty, assessment or forfeiture for failure to comply with any employer / employee matter except as accrued for in the Company Financial Statements.
(f) Section 2.14(f) sets forth a complete and accurate list of each Benefit Plan of the Company and its Subsidiaries, currently in effect, and all other bonus, pension, profit sharing, retirement, deferred compensation, incentive compensation, equity or equity-based compensation, severance, retention, change in control, disability, vacation, death benefit, housing, hospitalization or other medical plan, but excluding regular wages and salary, which is currently in effect and sponsored, maintained, contributed to, or required to be contributed to by the Company or any of its Subsidiaries or U.S. ERISA Affiliates. With respect to each Benefit Plan of the Company or any of its Subsidiaries, the Company has made available to Parent a current written copy thereof.
(g) Each Benefit Plan of the Company or any of its Subsidiaries has been administered in all material respects in accordance with its terms and all applicable Laws, including, with respect to any U.S. Subsidiary, ERISA and the Code, and contributions required to be made under the terms of any of the Benefit Plans Company and its Subsidiaries have been timely made or, if not yet due, have been properly reflected on the most recent consolidated balance sheet of the Company.
(h) Each Benefit Plan of the U.S. Subsidiary of the Company that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and all IRS guidance promulgated thereunder, to the extent such section and such guidance have been applicable to such Benefit Plan. There is no agreement, plan, Contract or other arrangement to which the Company or any of its Subsidiaries is a party or by which any of them is otherwise bound to compensate any Person in respect of Taxes pursuant to Section 409A or 4999 of the Code.
(i) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Benefit Plan of the U.S. Subsidiary of the Company which is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter or opinion letter from the IRS as to its qualified status, and each trust established in connection with any such Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and, to the Knowledge of such Contributor, no fact or event has occurred that could adversely affect the qualified status of any such Benefit Plan or the exempt status of any such trust, (ii) to the Knowledge of such Contributor, there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code), other than a transaction that is exempt under a statutory or administrative exemption, with respect to any such Benefit Plan, and (iii) no Legal Proceeding has been brought, or to the Knowledge of such Contributor is threatened, against or with respect to any such Benefit Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than for routine benefits claims).
(j) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Disclosure Letter containsMaterial Adverse Effect, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) Benefit Plan of the Company Disclosure Letter lists, as or its Subsidiaries established or maintained outside of the Original Agreement Date, with respect to United States of America primarily for the Acquired Companies all benefit of employees of the Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under any Subsidiary thereof residing outside the law or applicable custom or rule United States of any jurisdiction. America (a “Company Employee Plans” means Foreign Benefit Plan”): (i) all “employer and employee benefit plans” within contributions to each Company Foreign Benefit Plan required by law or by the meaning terms of Section 3(3any Company Foreign Benefit Plan have been made or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the Employee Retirement Income Security Act assets of 1974 each funded Company Foreign Benefit Plan, the liability of each insurer for any Company Foreign Benefit Plan funded through insurance or the book reserve established for any Company Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Company Foreign Benefit Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Company Foreign Benefit Plan, and neither the execution of this Agreement nor the consummation of the Transactions will cause such assets or insurance obligations to be less than such benefit obligations; and (“ERISA”iii) to the Knowledge of such Contributor, each Company Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(k) No consultation or agreement of the Company’s or any of its Subsidiaries’ employees or any of their representatives is legally required in connection with the completion of the Transactions.
(l) None of the employees or corporate officers of the Company or any of its Subsidiaries will receive from the Company or such Subsidiary any benefits as a result of the completion of the Transactions.
(m) None of the Key Employees has resigned or made known his or her intention to resign.
(n) Neither the Company or any of its Subsidiaries is the subject of any particular Legal Proceedings by any administrative authorities, commission, board, bureau or agency including, without limitation, the labor authorities (Inspection du Travail) and social security authorities (URSSAF) for failure to comply with any other Applicable Lawlabor regulations and there is no basis for any such Legal Proceedings.
(o) None of the Company’s or any of its Subsidiaries’ subcontractors or independent consultants, or employees of these subcontractors or independent consultants, have any right against the Company or such Subsidiary to claim that they must be categorized as actual employees of the Company or such Subsidiary as a result of their past relations with the Company or such Subsidiary.
(p) The Company and each of its Subsidiaries has satisfied all of its material obligations relating to labor and social security laws including those relating to (i) the employment of persons under fixed-term contracts of employment, (ii) each outstanding loan from an Acquired Company to an employee the use of such Acquired Company that has an outstanding balanceinterim personnel, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangements, employees’ representation and (iv) all material bonusthe application of collective bargaining agreements.
(q) Neither the execution of this Agreement nor the consummation of the Transactions will entitle any employee or former employee or current or former legal representative (mandataire social), commissioncorporate officer, profit sharingdirector or executive of the Company or any of its Subsidiaries to severance pay, savings, severance, retirement, deferred unemployment compensation or incentive plans any other payment or benefit (including cash any incentive plans), programs payment or arrangements, bonus) from the Company or such Subsidiary.
(vr) all other material fringe Neither the Company or employee benefit plans, programs any of its Subsidiaries employ nor have recourse to VRP (Voyageurs Répresentants Placiers) or arrangements (written commercial agents and no relationship of the Company or otherwise), whether of an individual or collective nature such Subsidiary with any Person (including commitments based on company practice any Key Employee) is liable to be re-categorized as such.
(betriebliche Übung))s) There are no pending or threatened or reasonably anticipated claims or Proceedings against the Company or any of its Subsidiaries under any workers’ compensation, regarding working time or welfare policy, employment or labor standards, human rights, labor relations, wrongful dismissal, occupational health and safety, employee benefits (such as performanceprivacy, pay equity or other employment-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired CompanyApplicable Laws.
Appears in 1 contract
Samples: Acquisition Agreement (Avalanche Biotechnologies, Inc.)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus paymentsSchedule 3.13(a) of more than EUR 100,000 individuallythe Disclosure Schedule lists, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant respect to local law are the “Key Employees”. Correct, complete and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an each Acquired Company or has made or received an offer to enter into a termination agreement. Furtherand each ERISA Affiliate, no Key all Company Employee has threatened or otherwise announced to terminate his/her employmentPlans.
(b) Schedule 2.12(b) The Company has Made Available to Parent a true, correct and complete copy of each of the Company Disclosure Letter contains Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, actuarial reports, financial statements, and any material employee communications relating thereto). All individuals who, pursuant to the terms of any Company Employee Plan, are entitled to participate in any Company Employee Plan, are currently participating in such Company Employee Plan or have been offered an opportunity to do so and have declined in writing.
(c) Each Company Employee Plan has been maintained and administered in accordance with respect its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations or other Applicable Law, and each Acquired Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. All contributions required to be made by any Acquired Company or any ERISA Affiliate to any Company Employee Plan have been made on or before their due dates and the required amount (according to the specific relevant plan and not less than amount required under Applicable Law) has been accrued for contributions to each Company Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business and consistent with past practice after the Balance Sheet Date as a result of the operations of the Acquired Companies correct after the Balance Sheet Date). Each Company Employee Plan can be amended, terminated, or otherwise discontinued after the Closing in accordance with its terms, without Liability to Parent (other than ordinary and complete list reasonable administrative expenses typically incurred in a termination event).
(d) No Action has been brought, or to the knowledge of the individual independent contractorsCompany, advisory board members is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the IRS or United States Department of Labor or any Governmental Body. With respect to each Company Employee Plan, (i) no breaches of fiduciary duty or other failures to act or comply in connection with the administration or investment of the assets of such Company Employee Plan have occurred, (ii) no Lien has been imposed under the Code, ERISA or any other Applicable Law and individual consultants who are active for such (iii) no Acquired Company as has made any filing in respect of such Company Employee Plan under the Original Agreement DateEmployee Plans Compliance Resolution System, setting out the department, fees, initial date Department of engagement, service rendered, whether such engagement Labor Delinquent Filer Program or any other voluntary correction program.
(e) There has been terminated no amendment to, written interpretation or announcement (whether or not written) by written notice by either party thereto any Acquired Company or any ERISA Affiliate relating to, or change in participation or coverage under, any Company Employee Plan that would materially increase the expense of maintaining such Company Employee Plan above the level of expense incurred with respect to such Company Employee Plan for the most recent full fiscal year included in the Financial Statements.
(f) No Company Employee Plan is maintained through a human resources and applicable notice benefits outsourcing entity or termination provisions professional employer organization. The Acquired Companies do not sponsor or maintain any self-funded employee benefit plan, including any plan to which a stop-loss policy applies.
(g) Each Acquired Company is and state/locality has been in compliance with all Applicable Law respecting employment, discrimination in employment, harassment and country retaliation in which engaged. None employment, terms and conditions of employment employee benefits, worker classification (including the current proper classification of workers as independent contractors and consultants and none the proper classification of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified employees as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) of the Company Disclosure Letter lists, as of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) and any other Applicable Law, (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangements, (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant exempt or non-employee director of an Acquired Company.exempt), wages, hours including any local orders relating to COVID-19 and occupational safety and health and employment practices, work permits, immigration laws and the regulatory remuneration rules as included in the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht, “FMSA”), including Chapter 1.7
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Employee Benefit Plans and Employee Matters. (a) All individuals employed by the Acquired Companies (i) with an annual gross fixed salary (excluding bonus payments) of more than EUR 100,000 individually, or (ii) with the status of managing directors (Geschäftsführer) or equivalent pursuant to local law are the “Key Employees”. Correct, complete and up-to-date copies of the employment or service agreements with the Key Employees have been disclosed. None of the current Key Employees has given or received notice of termination, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employment.
(b) Schedule 2.12(b2.13(a) of the Company Disclosure Letter contains with respect to each of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(c) Schedule 2.12(c) of the Company Disclosure Letter contains, with respect to each of the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmer) who are deployed by such Acquired Company as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) of the Company Disclosure Letter lists, as of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means lists (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”) and any other Applicable Lawavailable to Company Employees, (ii) each outstanding loan from an Acquired to a Company to an employee of such Acquired Company that has an outstanding balanceEmployee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance, insurance or accident insurance or similar employee benefit plans, programs or arrangementsarrangements available to Company Employees, (iv) all material bonus, commissionpension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, provided to Company Employees and (viv) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, Company Employee or consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (v), collectively, the “Company Employee Plans”).
(b) Parent has furnished or Made Available to Acquiror a true, correct and complete copy of each of the Company Employee Plans. Any Company Employee Plan sponsored by a member of the Parent Group intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Acquired Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law or benefits in the nature of severance pay pursuant to the retention agreements set forth on Schedule 2.13(c) of the Company Disclosure Letter. Each Company Employee Plan has been administered in accordance with its terms and in material compliance with the requirements prescribed by any and all applicable statutes, rules and regulations (including ERISA and the Code). The Company does not currently sponsor, maintain or have liability with respect to any Company Employee Plan. None of the Company, Parent or any member of the Parent Group is subject to any Liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Company Employee Plans. With respect to each Company Employee Plan sponsored by the Parent Group in which Company Employees participate that is intended to include a Code Section 401(k) arrangement, the applicable member of the Parent Group has at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. No Company Employee Plan is covered by, and neither the Company nor any member of the Parent Group has incurred or reasonably expects to incur any Liability under Title IV of ERISA or Section 412 of the Code.
(d) With respect to each Company Employee Plan, to the extent applicable, the Company has complied with the applicable health care continuation and notice provisions of COBRA and the regulations (including proposed regulations) thereunder.
(e) None of the Company or any member of the Parent Group currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) in which Company Employees participate that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(f) None of the Company or any member of the Parent Group is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code in which Company Employees participate.
(g) Neither the Company nor any member of the Parent Group maintains or contributes to a compensation or benefit plan on behalf of Company Employees under the law or applicable custom or rule of a jurisdiction outside of the United States. The Company does not maintain, sponsor or contribute to any plan within the meaning of Section 3(3) of ERISA.
(h) With the exception of the Retention Agreements, none of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated hereby or any termination of employment or service or any other event in connection therewith will, individually or together or with the occurrence of some other event, (i) result in any payment (including severance, unemployment compensation (other than pursuant to governmental programs and as described in Schedule 2.13(h) of the Company Disclosure Letter), golden parachute, bonus or otherwise) becoming due to any Company Employee or service provider of Parent providing services to the Company, (ii) materially increase or otherwise enhance any benefits otherwise payable by the Company or Parent to any such Person, (iii) result in the acceleration of the time of payment or vesting of any such benefits to any such Person, (iv) increase the amount of compensation due to any such Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by Parent or the Company to any such Person.
(i) With respect to Company Employees or service providers of Parent providing services to the Company, Parent or the Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company or Parent has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to Company Employees or service providers of Parent providing services to the Company. With the exception of the Retention Agreements, the Company or Parent has paid in full to all Company Employees, service providers of Parent providing services to the Company, and independent contractors and consultants of the Company all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. Neither the Company nor any member of the Parent Group is liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for Company Employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(j) With the exception of the Retention Agreements, Schedule 2.13(j) of the Company Disclosure Letter sets forth a true, correct and complete list as of the Agreement Date of all severance Contracts and employment Contracts by which Parent or the Company is bound with respect to Company Employees. Neither the Company nor any member of the Parent Group has any obligation to pay any amount or provide any benefit to any former Company Employee whose employment by the Company terminated prior to the Agreement Date. With respect to Company Employees, neither the Company nor any member of the Parent Group is a party to or bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company or any member of the Parent Group, and neither the Company nor any member of the Parent Group has any duty to bargain with any labor organization with respect to Company Employees. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Company Employee. Neither Parent nor the Company has any knowledge of any activities or proceedings of any labor union or to organize Company Employees. There is no labor dispute, strike or work stoppage against the Company pending or, to the knowledge of Parent or the Company, threatened, which may interfere with the Business.
(k) To the knowledge of Parent or the Company, no Company Employee is in violation of any term of any employment agreement, non-competition agreement, or any restrictive covenant to a former employer. Except as set forth on Schedule 2.13(k) of the Company Disclosure Letter, since May 30, 2012, no Company Employee has given notice to Parent or the Company, nor does Parent or the Company otherwise have knowledge, that any such employee intends to terminate his or her employment with the Company or Parent. The employment of each of the Company Employees is “at will”, and neither the Company nor Parent has any obligation to provide any particular form or period of notice prior to terminating the employment of any of the Company Employees, except as set forth on Schedule 2.13(k) of the Company Disclosure Letter. As of the Agreement Date and other than as provided herein or in the Retention Agreements, neither the Company nor any member of the Parent Group has, and to the knowledge of Parent or the Company, no other Person has, (i) entered into any Contract that obligates or purports to obligate Acquiror to make an offer of employment to any present or former Company Employee or consultant of the Company and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former Company Employee or consultant of the Company of any terms or conditions of employment with Acquiror following the Effective Time.
(l) Parent has provided to Acquiror a true, correct and complete list of the names, positions and rates of compensation of all Company Employees as of the Agreement Date, showing each such person’s name, position, annual remuneration, status as exempt/non-exempt, bonuses and fringe benefits for the current fiscal year and the most recently completed fiscal year. None of the Company Employees are international employees.
(m) The Company has provided to Acquiror true, correct and complete copies of each of the following with respect to the Company Employees: all forms of offer letters; all forms of employment agreements and severance agreements; all forms of confidentiality, non-competition or inventions agreements between current Company Employees and consultants and the Company (and a true, correct and complete list of Company Employees, consultants and/or others not subject thereto); the most current management organization chart(s); summary of Liability for termination payments to current and former Company Employees and directors and officers of the Company; and a schedule of bonus commitments made to Company Employees.
(n) There are no performance improvement or disciplinary actions contemplated or pending against any of the current Company Employees.
(o) The transactions contemplated by this Agreement shall not constitute a “plan closing” or “mass layoff” with respect to or under the Worker Adjustment Retraining Notification Act of 1988, as amended (“WARN Act”), or any similar state or local law. No Company Employee has suffered an “employment loss” (as defined in the WARN Act) during the 90-day period prior to the Agreement Date.
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Samples: Merger Agreement (Glu Mobile Inc)
Employee Benefit Plans and Employee Matters. (a) All individuals employed by Section 3.15(a) of the Acquired Companies Disclosure Schedule sets forth an accurate and complete list of the Business Employees, including for each such Business Employee, the following information: (i) start date of employment, (ii) job title, (iii) notice period, (iv) base salary, (v) target bonus or incentive compensation information, (vi) material benefits; (vii) job location; (viii) employing entity; and (ix) to the extent applicable, whether it is anticipated that they will be a Direct Transfer Employee, Indirect Transfer Employee, PEO Employee or TUPE Employee.
(b) Each Business Employee is wholly or primarily assigned to working in the Business. Except for the Business Employees, as of the date hereof, no other Person is primarily assigned to work in the Business.
(c) Each Business Employee has the right to work in the jurisdiction in which they are employed, and no Business Employee requires a visa, permit or other consent to do so, except as set forth with an annual gross fixed salary (excluding bonus paymentsaccurate details on Section 3.15(c) of more than EUR 100,000 individuallythe Disclosure Schedule.
(d) Seller Parent has provided Buyer Parent an accurate and complete copy of any current material employment agreement of each Senior Employee.
(e) Section 3.15(e) of the Disclosure Schedule sets forth a list of all material employee benefit plans, programs and arrangements (including any material “employee benefit plan” as defined in Section 3(3) of ERISA)
(i) maintained or contributed to by any Seller Party or Target Company exclusively for the Business Employees (including, in each case, which entity so maintains and/or contributes) or (ii) with respect to which the status of managing directors Target Companies would reasonably be expected to have any material Liability (Geschäftsführer) or equivalent pursuant to local law are together, the “Key EmployeesCompany Plans”. Correct)
(f) With respect to each Company Plan, complete Seller Parent has delivered or otherwise made available to Buyer Parent a copy of: (i) the current summary plan description and up-to-date copies any material modifications thereto, if any, or any written summary provided to participants with respect to any plan for which no summary plan description exists; and (ii) if such Company Plan is intended to be qualified under Section 401(a) of the employment Code, the most recent determination letter (or service agreements with if applicable, advisory or opinion letter) from the Key Employees have been disclosed. None of the current Key Employees has given or received notice of terminationIRS, has entered into a termination agreement with an Acquired Company or has made or received an offer to enter into a termination agreement. Further, no Key Employee has threatened or otherwise announced to terminate his/her employmentif any.
(bg) Schedule 2.12(bEach Company Plan has been established and maintained in accordance with its terms and in compliance with all applicable Laws in all material respects, including ERISA or the Code. There are no current Legal Proceedings pending, or, to Seller Parent’s Knowledge, threatened in writing (other than routine claims for benefits) of the against any Company Disclosure Letter contains Plan. There are no material Legal Proceedings pending or, to Seller Parent’s Knowledge, threatened in writing by any Governmental Entity with respect to each of the Acquired Companies correct and complete list of the individual independent contractors, advisory board members and individual consultants who are active for such Acquired any Company as of the Original Agreement Date, setting out the department, fees, initial date of engagement, service rendered, whether such engagement has been terminated by written notice by either party thereto and applicable notice or termination provisions and state/locality and country in which engaged. None of the current independent contractors and consultants and none of the independent contractors and consultants deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local lawsPlan.
(ch) Schedule 2.12(c) of the No payment or benefit which will or may be made by any Seller Party or Target Company Disclosure Letter contains, with respect to each of any “disqualified individual” (as defined in Code Section 280G and the Acquired Companies an anonymized list of leased employees (Leiharbeitnehmerregulations thereunder) who are deployed by such Acquired Company will be characterized as of the Original Agreement Date, setting out the department, provider, fees and service rendered. None of the current leased employees and none of the leased employees deployed within the last five years prior to the Original Agreement Date has or had to be classified as an employee (Arbeitnehmer) of any Acquired Company pursuant to the applicable local laws.
(d) Schedule 2.12(d) of the Company Disclosure Letter lists, as of the Original Agreement Date, with respect to the Acquired Companies all Company Employee Plans, and separately identifies each Company Employee Plan sponsored, maintained or contributed to under the law or applicable custom or rule of any jurisdiction. “Company Employee Plans” means (i) all “employee benefit plans” a parachute payment within the meaning of Code Section 3(3) 280G(b)(2). There is no contract, agreement, plan or arrangement to which the Target Companies are bound to provide a gross-up or otherwise reimburse any employee for excise taxes paid pursuant to Section 4999 of the Employee Retirement Income Security Act Code. The execution and delivery of 1974 (“ERISA”) this Agreement and any other Applicable Law, (ii) each outstanding loan from an Acquired Company to an employee of such Acquired Company that has an outstanding balance, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, virtual share (including the VSOPs), stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, life insurance, accident insurance or similar employee benefit plans, programs or arrangements, (iv) all material bonus, commission, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other material fringe or employee benefit plans, programs or arrangements (written or otherwise), whether of an individual or collective nature (including commitments based on company practice (betriebliche Übung)), regarding employee benefits (such as performance-related payments, anniversary, holiday or jubilee payments, Christmas bonuses, stock options, fringe benefits, other variable remuneration elements or similar rights) and company pensions, and (vi) all employment and individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, in each case, as to which any unsatisfied obligations of an Acquired Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of an Acquired Company.Closing
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