Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. (b) The Company is not a party to, nor bound by, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or labor organization representing any of its employees; and no employees of the Company are represented by any labor union or labor organization with respect to their employment with the Company. Since January 1, 2018, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, or other union organizing activity or dispute, or any threat thereof, by any employees of the Company with respect to their employment with the Company. (c) Since January 1, 2019, the Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance. (d) In the three-year period prior to the date of this Agreement, to the knowledge of the Company, no allegations of sexual harassment or misconduct have been made against (i) any officer, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Company. (e) To the knowledge of the Company, no employee of the Company is in any respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary information. (f) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment. (g) Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 3.17(l); and agreements with consultants entered into in the ordinary course of business consistent with past practice). The Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable). (h) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA has ever sponsored, maintained, contributed to, or been required to contribute to a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. (i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any retiree medical benefit plan or other retiree welfare plan. (k) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan will fail to be deductible due to the operation of Section 280G of the Code. (l) The Company has delivered or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code. (m) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Forty Seven, Inc.)
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Companies’ employees is terminable by the applicable Acquired Company at will, subject to any severance rights contained in any applicable Employee Plan.
(b) The No Acquired Company is not a party to, nor or bound by, any collective bargaining agreement or any other labor-related Contract Contract, agreement, understanding or arrangements arrangement with any labor union or labor organization representing any of its employees; and no employees of the any Acquired Company are represented by any labor union or labor organization with respect to their employment with the any Acquired Company. Since January 1, 20182019, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, or other union organizing activity or dispute, or any threat thereof, by any employees of the any Acquired Company with respect to their employment with the CompanyAcquired Companies.
(c) Since January 1, 2019, the each Acquired Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, including all laws respecting terms and conditions of employment, health and safety, wages and hours, employee and independent contractor classification, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this AgreementSince January 1, 2019, to the knowledge of the CompanyCompany as of the date of this Agreement, no allegations of sexual harassment or misconduct have been made against (i) any officer, officer or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Acquired Company.
(e) To the knowledge of the Company as of the date of this Agreement, no current or former employee of any Acquired Company, no employee at the level of the Company vice president or higher, is in violation in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, agreement or restrictive covenant or other obligation: (i) with or to the any Acquired Company or (ii) with or to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the any Acquired Company or (B) the knowledge or use of trade secrets in proprietary information.
(f) To the knowledge of the CompanyCompany as of the date of this Agreement, no current employee of the any Acquired Company, at the level of Vice President vice president or higher, intends has expressed a current intention to terminate his or her employmentemployment with an Acquired Company.
(g) Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the any Acquired Company; equity grant notices, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 3.17(l3.17(m); and agreements with consultants entered into in the ordinary course of business consistent with past practice). The Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable).
(h) Neither the No Acquired Company nor any other Person that would be orbe, or at any relevant time, time would have been been, considered a single employer with the any Acquired Company under the Code or ERISA has ever during the past six years sponsored, maintained, contributed to, or been required to contribute to a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the no Acquired Company is not and or could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the no Acquired Company nor any Employee Plan has any present or future obligation to provide post-employment or post-service welfare benefits to or make any payment to, or with respect to, any present or former employee, officer officer, director or director individual independent contractor of the Company any Acquired Company, including pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.82.08, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the any Acquired Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the any Acquired Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan .
(l) The consummation of the Transactions will fail to be deductible due to not (either alone or in combination with other events or circumstances) result in any “excess parachute payment” within the operation meaning of Section 280G of the Code.
(lm) The Company has delivered or made available to Parent copies of the Company Equity Plans and the standard forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(mn) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Immunomedics Inc), Merger Agreement (Gilead Sciences Inc)
Employee Matters; Benefit Plans. (a) The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement a list setting forth all of the employees and individual independent contractors as of August 31, 2016, including for each such individual, as applicable: name, job title, Fair Labor Standards Act designation, work location (identified by street address), current salary or wage rate, all wage arrangements, fringe benefits (other than employee benefits applicable to all employees under an Employee Plan), accrued vacation or other time off and visa and green card application status. To the Company’s knowledge, no employee or independent contractor is a party to, or is otherwise bound by, any agreement or arrangement, including any confidentiality or non-competition agreement, that in any way adversely affects or restricts the performance of such individual’s duties for the Company. Each current and former employee and independent contractor has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Company vesting all rights in work product created by the employee during the individual’s employment or affiliation with the Company. Except as required by applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. As of the date of the Agreement, to the Company’s knowledge, no current employee of the Company has given notice of termination of employment or otherwise disclosed to the Company plans to terminate employment with the Company within the next twelve (12) months. The Company has, or will have no later than the Closing Date, paid all accrued salaries, bonuses, commissions, wages, severance and accrued vacation pay of the employees due to be paid through the last payroll period ending prior to the Closing Date. No employee of the Company has a principal place of employment outside the United States or is subject to the labor and employment laws of any country other than the United States.
(b) The Company is not a party or otherwise subject to, nor bound byor has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or a labor organization representing any of its employees; , and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company are represented by any labor union or labor organization with respect to their employment with the Company. Since January 1, 2018, there There has not been any unfair labor practice chargestrike, material grievanceslowdown, material arbitration, strikework stoppage, lockout, or other job action, picketing, labor dispute, question concerning labor representation, union organizing activity or disputeactivity, or any threat thereof, by or any employees of similar activity or dispute, affecting the Company with respect to their employment with the Company.
(c) Since January 1or any of its employees. There is not now pending, 2019, the Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this Agreementand, to the knowledge of the Company, no allegations of sexual harassment Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute, question regarding labor representation or misconduct have union organizing activity or any similar activity or dispute. There has been made against (i) any officerno material Legal Proceeding filed or, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Company.
(e) To to the knowledge of the Company, no employee threatened relating to employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. The Company has complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, wages, hours and other terms and conditions of employment (including the classification and compensation of employees for purposes of the Company is Fair Labor Standards Act and cognate state laws and the classification of independent contractors), immigration, discrimination, and other Legal Requirements in any respect in violation of any term of any employment agreementreduction in force, nondisclosure agreementincluding notice, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary informationinformation and consultation requirements.
(f) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(gc) Section 3.17(g3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete list of each the material Employee Plan (other than any employment or severance agreement for non-executive employees of Plans. To the Company; equity grant noticesextent applicable, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 3.17(l); and agreements with consultants entered into in the ordinary course of business consistent with past practice). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule accurate and complete copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iiiiv) the most recent summary plan descriptions and any material modifications thereto, (v) the most recent nondiscrimination tests required to be performed under the Code (including 401(k) and 401(m) tests) for each Employee Plan, and
(vi) all material correspondence to or from the IRS, the United States Department of Labor DOL or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Plan. No Employee Plan (if applicable)is subject to any Legal Requirements other than those of the United States or any state, county or municipality in the United States.
(hd) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA (each, an “ERISA Affiliate”) has ever sponsored, maintained, contributed to, or been required to contribute to (i) a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan will fail to be deductible due to the operation of Section 280G of the Code.
(l) The Company has delivered or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (a “multiple employer welfare arrangement” within the meaning of Section 409A 3(40) of ERISA, or (iii) a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code) and is otherwise not subject Code or other funding arrangement for the provision of welfare benefits (such disclosure to Section 409A include the amount of the Code.
(m) any such funding). Each Employee Plan maintained for the benefit of any employee that provides health, life or service provider (other welfare or former employee or service provider) who performs services outside the United States welfare-type benefits is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, fully insured by a Material Adverse Effectthird party insurance company.
Appears in 2 contracts
Samples: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will.
(b) The Company No Acquired Corporation is not a party to, nor bound byor has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or a labor organization representing any of its employees; employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company are represented by any labor union or labor organization with respect to their employment with the Companyan Acquired Corporation. Since January 1, 20182013, there has not been any unfair labor practice chargestrike, material grievanceslowdown, material arbitration, strikework stoppage, lockout, or other job action, picketing, labor dispute, question concerning labor representation, union organizing activity or disputeactivity, or any threat thereof, by or any employees similar activity or dispute, affecting an Acquired Corporation or any of the Company with respect to their employment with the Company.
(c) Since January 1its employees. There is not now pending, 2019, the Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this Agreementand, to the knowledge of the Company, no allegations of sexual harassment Person has overtly threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute, question regarding labor representation or misconduct have been made against (iunion organizing activity or any similar activity or dispute. Since January 1, 2013, other than as set forth in Part 3.15(b) any officer, or director of the Company or (ii) any employee of the Company whoDisclosure Schedule, directly or indirectlythere has been no Legal Proceeding pending or, supervises other employees of the Company.
(e) To to the knowledge of the Company, no employee overtly threatened relating to employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 2013, the Acquired Corporations have complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, discrimination in employment, occupational safety and health, wages, hours and other terms and conditions of employment (including the classification and compensation of employees for purposes of the Company is Fair Labor Standards Act and cognate state laws) and other Legal Requirements in any respect in violation of any term of any employment agreementreduction in force, nondisclosure agreementincluding notice, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary informationinformation and consultation requirements.
(fc) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(g) Section 3.17(gPart 3.15(c) of the Company Disclosure Schedule sets forth a list of each material the Employee Plan Plans as of the date of this Agreement (other than any employment or severance agreement for offer letters with non-executive officer employees of the Company; equity grant notices, agreements and instruments that do not which are materially deviate from the consistent with forms delivered or made available to Parent by the Company prior to the execution of this Agreement in accordance Agreement; equity grant notices, and related documentation, with Section 3.17(l)respect to employees of the Acquired Corporations; and agreements with consultants entered into in the ordinary course of business and which are materially consistent with past practiceforms delivered or made available by the Company prior to the execution of this Agreement). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement Agreement, with respect to each Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule Plan, accurate and complete copies of, to the extent relevant: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, ; (ii) a written description of any such Employee Plan if such plan is not set forth in a written document; (iii) all current determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”); (iv) the most recent audited financial statements, if any, the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 5500); (v) the most recent summary plan descriptions and all schedules any material modifications thereto; (vi) the most recent nondiscrimination tests required to be performed under the Code (including 401(k) and financial statements attached thereto), 401(m) tests) for each Employee Plan; and (iiivii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body sent or received in the last three years with respect to an any Employee Plan and (iv) Plan. None of the most recent determination letter received from the IRS Acquired Corporations has any commitment to modify, change or terminate any Employee Plan, other than with respect to a modification, change or termination required by ERISA or the Code or made in connection with open enrollment periods in the ordinary course of business, and there has been no amendment to, or modification of, or written interpretation or announcement by an Acquired Corporation regarding any Employee Plan (if applicable)that would materially increase the expense of maintaining such Employee Plan above the level of expense incurred with respect to such Employee Plan as reflected in the financial statements included in the Company SEC Documents for the fiscal year ended December 31, 2015.
(hd) Neither the Company an Acquired Corporation nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA has ever sponsored, maintained, contributed to, or been required to contribute to a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan will fail to be deductible due to the operation of Section 280G of the Code.
(l) The Company has delivered or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(m) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.has
Appears in 1 contract
Samples: Merger Agreement (Sequenom Inc)
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal RequirementsLaws, the employment of each of any of the Company’s Acquired Companies’ employees is terminable at-will by the Company at willsuch Acquired Company.
(b) The Company has made available to Purchaser a complete and accurate list of each current employee of the Acquired Companies as of the Agreement Date, including for each current employee: (i) job title, (ii) employing entity and location of employment (including city, state, province and country, as applicable), (iii) exempt or nonexempt status under applicable federal and state wage and hour Laws, (iv) base salary or hourly wages, as applicable, (v) target bonuses, if applicable, (vi) target commissions and any other compensation arrangements, if applicable, and (vii) visa status and visa expiration date (if applicable).
(c) No Acquired Company is not a party to, nor bound byhas a duty to bargain for, or is currently negotiating in connection with entering into, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or a labor organization or work council representing any of its employees; employees and there are no labor organizations representing, purporting to represent or, to the Knowledge of the Company, seeking to represent any employees of any of the Company are represented by any labor union or labor organization with respect to their employment with the CompanyAcquired Companies. Since January 1, 20182019, there has not been any unfair labor practice chargestrike, material grievanceslowdown, material arbitration, strikework stoppage, lockout, picketing or other union organizing activity or labor dispute, affecting any of the Acquired Companies or any threat thereofof its employees. There is not pending, by any employees and, to the Knowledge of the Company with respect Company, since January 1, 2019, no Person has threatened in writing to their employment with the Companycommence, any such strike, slowdown, work stoppage, lockout, picketing or labor dispute.
(cd) There is no Legal Proceeding pending or, to the Knowledge of the Company, since January 1, 2019, threatened relating to employment, including any relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, other than any Legal Proceedings that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Since January 1, 2019, the each Acquired Company has been in material compliance complied with all applicable Legal Requirements Laws related to employment and employment, including applicable Laws relating to employment practices, includingdiscrimination, without limitationretaliation, all laws respecting harassment, immigration, wages, hours and other terms and conditions of employment, health any reduction in force (including any notice and safetyinformation requirements), wages except where the failure to be in compliance, individually or in the aggregate, has not had and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior would not reasonably be expected to the date of this Agreement, to the knowledge of the Company, no allegations of sexual harassment or misconduct have been made against (i) any officer, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Companya Material Adverse Effect.
(e) To the knowledge of the Company, no employee of the Company is in any respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary information.
(f) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(g) Section 3.17(g4.18(e) of the Company Disclosure Schedule sets forth Schedule, contains a complete and accurate list of each all Employee Plans as of the Agreement Date. No Acquired Company has any agreement, commitment or obligation, to create, enter into or contribute to any additional material Employee Plan, or to modify, amend, maintain or continue any existing Employee Plan (other than any employment or severance agreement except for non-executive employees of amendments required by applicable Law with respect to which the Company; equity grant notices, agreements and instruments that do amendment deadline has not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 3.17(l); and agreements with consultants entered into in the ordinary course of business consistent with past practiceyet lapsed). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan listed on Section 3.17(g) accurate and complete copies of the Company Disclosure Schedule copies offollowing, as relevant: (i) all plan documents and all amendments thereto, and all related trust or trust, insurance Contracts and other funding documents, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable).
(h) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA has ever sponsored, maintained, contributed to, or been required to contribute to a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan will fail to be deductible due to the operation of Section 280G of the Code.
(l) The Company has delivered or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(m) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.funding
Appears in 1 contract
Samples: Agreement and Plan of Merger (Biodelivery Sciences International Inc)
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will.
(b) The Company is not a party to, nor bound by, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or labor organization representing any of its employees; and no employees of the Company are represented by any labor union or labor organization with respect to their employment with the Company. Since January 1, 2018, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, or other union organizing activity or dispute, or any threat thereof, by any employees of the Company with respect to their employment with the Company.
(c) Since January 1, 2019, the Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this Agreement, to the knowledge of the Company, no allegations of sexual harassment or misconduct have been made against (i) any officer, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Company.
(e) To the knowledge of the Company, no employee of the Company is in any respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary information.
(f) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(g) Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms either delivered or made available to Parent prior to the execution of this Agreement and in accordance with Section 3.17(l)Legal Requirements relating to data privacy regulations a list setting forth all current employees and individual independent contractors of the Company and the Acquired Companies describing for each such individual: (i) employee identifier and date of hire; (ii) name of employing entity and work location; (iii) job title; (iv) full time or part time status; (v) annual base salary or hourly rate; and (vi) target bonus, commission or other variable compensation for the current fiscal year.
(b) Neither the Company nor any of the Acquired Companies is a party to any collective bargaining agreement or other Contract with a works council or a labor organization representing any of its employees. Since January 1, 2020, there has not been any strike, lockout, or other union or labor organizing activity, or any threat thereof, by any employees of the Company or its Subsidiaries with respect to their employment with the Company or any of the Acquired Companies. To the Knowledge of the Company, there are no material pending or threatened filings of any unfair labor practice charges or certification petitions or applications or related employer applications regarding representation of employees at the National Labor Relations Board or other similar agencies, nor have there been any such filings or petitions since January 1, 2022 through the present.
(c) Since January 1, 2020, the Company and each of the Acquired Companies has complied, in all material respects, with and continues to comply with all applicable material Legal Requirements related to labor and employment, including without limitation those related to employment practices, terms and conditions of employment, wages and hours, employee and independent contractor classification, hours of work, overtime, pay, payment of employees and independent contractors, leaves of absence, collective bargaining, equal opportunity in employment, harassment, discrimination, retaliation, whistleblower protection, termination or discharge, restrictive covenants, pay equity, accommodation, local language laws (if applicable), background checks, payroll documents and wage statements, disability, unemployment compensation, plant closings and layoffs, affirmative action, occupational health and safety, workers’ compensation and immigration. The Company and each of the Acquired Companies is not delinquent in any material payments to any employee or other workers for any wages, salaries, commissions, bonuses, fees or other direct compensation due with respect to any service performed for it or amounts required to be reimbursed to such employees or contingent workers. To the Knowledge of the Company, since January 1, 2021, the Company has not received any whistleblower allegations, complaints or reports.
(d) Section 3.16(d) of the Company Disclosure Schedule sets forth an accurate and complete list of the Employee Plans (other than (i) any employment or consulting agreement that is terminable upon notice of thirty (30) days or less without penalty and does not provide for material termination, severance or change in control, or other similar payments or benefits, excluding any such agreements with consultants entered into in the ordinary course of business consistent with past practicewhere such notice or separation payments arise solely from any law or regulation separate from such Employee Plans, and (ii) equity grant notices and related documentation). The Section 3.16(d) of the Company Disclosure Schedule separately identifies each Employee Plan that is an International Plan. To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule accurate and complete copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor or other similar agencies or authorities, (iii) the most recent annual actuarial valuationsummary plan descriptions and any material modifications thereto, if any, and (iv) the results of the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto)nondiscrimination tests required to be performed under applicable Legal Requirements, (iiiv) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an such Employee Plan issued within the last twelve (12) months, and (ivvi) the most recent determination letter received from the IRS with respect if such Employee Plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Legal Requirements and practices) to the Employee Plan documents required to be provided in clauses (if applicablei) through (v).
(he) Neither Within the last six (6) years, neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA (“ERISA Affiliate”) has ever sponsored, maintained, contributed to, or been required to contribute to a “defined benefit plan” (as defined in Section 3(35) of ERISA) or any plan that is or was subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or plan, any “multiemployer plan,” each as defined in Section 4001 3(37) of ERISA, which is subject to ERISA, any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or a “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA, which is subject to ERISA). Each Employee Plan that provides health, life, or other welfare benefit is fully insured by a third party insurance company.
(if) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode on which it is entitled to rely, and, and to the knowledge Knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely affect the qualified status of any such Employee Plan. Each of the Employee Plans is now and has been operated at all times maintained, operated, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, Code or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effectsimilar applicable legislation. To the knowledge of the Company, the The Company is not and could not reasonably be expected to be subject to either a material liability pursuant to Section 502 of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, Code or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effectsimilar applicable legislation. There are no pending, No pending or, to the knowledge Knowledge of the Company, threatened in writing or anticipated material claims bythreatened, on behalf of or Legal Proceedings exist with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan Plan (other than routine claims for benefits), except as has not hadand no Employee Plan is the subject of any pending examination, investigation or audit by any Governmental Body that would not reasonably be expected to haveresult in a material liability of the Company. With respect to each Employee Plan, individually all contributions, premiums, distributions and other payments have been timely paid or in made (to the aggregate, a Material Adverse Effectextent due) or properly accrued (to the extent not yet due).
(jg) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local by Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries)Requirements, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company or its Subsidiaries pursuant to any retiree medical benefit plan or other retiree welfare plan. The Company and its ERISA Affiliates have materially complied and are in compliance in all material respects with the requirements of Section 601 et seq. of ERISA or 4980B of the Code, as well as the Patient Protection and Affordable Care Act, including the Health Care and Education Reconciliation Act of 2010, as amended and including any guidance issued thereunder (“PPACA”). Neither the Company nor any Subsidiary has incurred (whether or not assessed), or, to the Knowledge of the Company, is reasonably expected to incur or to be subject to, any Tax or other penalty under PPACA (including with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable) or under Sections 4980B, 4980D or 4980H of the Code.
(kh) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or including in combination with other events or circumstances) will not (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company or its Subsidiaries to notice of termination or pay in lieu thereof, severance pay, unemployment compensation or any other payment, compensation or benefits, (ii) accelerate the time of payment or vesting, or increase the amount of, any payments, compensation or benefits due to any such employee, director, officer, independent contractor contractor, or result in the forgiveness of any such individual’s indebtedness, (iii) directly or indirectly cause the Company or its Subsidiaries to transfer or set aside any material assets to fund any payments or benefits under any Employee Plan. No amounts payable under , (iv) limit or restrict the ability to merge, amend or terminate any Employee Plan, or (iv) result in any payment that would constitute an Employee Plan will fail to be deductible due to “excess parachute payment” within the operation meaning of Section 280G of the Code.
(li) The Company has delivered Each Employee Plan or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (Contract that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code) Code has been operated and is otherwise not subject to maintained in all material respects in operational and documentary compliance with Section 409A of the CodeCode and applicable guidance thereunder. The Company does not have any obligation to gross-up, indemnify, reimburse or otherwise make whole any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code (or any corresponding provisions of state, local or foreign Tax law).
(mj) Each Employee International Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated maintained in material compliance with its terms and with the requirements prescribed by any and all applicable Legal RequirementsRequirements and has been maintained in good standing with applicable regulatory authorities. There has been no amendment to, except as has written interpretation of or announcement (whether or not hadwritten) by any Acquired Company relating to, or change in employee participation or coverage under, any International Plan that would increase the expense of maintaining such International Plan above the level of expense incurred in respect thereof for the most recent fiscal year ended prior to the date hereof. Each International Plan that (i) is intended to qualify for special Tax treatment, is so qualified, and (ii) is required to be registered with a Governmental Body, is so registered. Except as would not reasonably be expected to haveresult in, individually or in the aggregate, a Material Adverse Effectmaterial liability to the Company, the fair market value of the assets of each International Plan, the liability of each insurer for any International Plan funded through insurance, or the book reserve established for any such plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing Date, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such plan. Except as set forth on Section 3.16(j) of the Company Disclosure Schedule, the Acquired Companies do not sponsor or are otherwise under any liability with respect to any International Plan that is a defined benefit pension scheme.
(k) (i) There are no and, since January 1, 2022, there have not been any material Legal Proceedings which are pending or which have been threatened in writing, complaints (internal or external), audits or investigations, involving the Company or any of the Acquired Companies with respect to any labor or employment matters; and (ii) since January 1, 2020, neither the Company nor any of the Acquired Companies has entered into any settlement or consent agreement, or been subject to any judgment by any Governmental Body, respecting employees and/or contractors associated therewith.
(l) From January 1, 2020 through the date of this Agreement, no allegations of sexual harassment, sexual discrimination, retaliation or any other form of discrimination or harassment have been reported internally to the Company’s Vice President of Human Resources, its General Counsel or any Assistant General Counsel or the Company’s whistleblower hotline against the Company, any of the Acquired Companies or any officer or director thereof by or against any current employee or contingent worker of the Company or any of the Acquired Companies.
(m) Neither the Company nor any Acquired Company has, since January 1, 2022 through the date of this Agreement, effectuated a “plant closing” or “mass lay-off,” as such terms are defined under the Worker Adjustment and Retraining Notification Act and any similar state or local laws (collectively, the “WARN Act”), in each case as defined in the WARN Act, affecting any site of employment or facility of the Company or any other Acquired Company, nor, to the Knowledge of the Company, has the Company or any other Acquired Company planned or announced any such plant closings, employee layoffs or other employment losses. Since January 1, 2020, with respect to any “plant closing” or “mass lay-off” occurring within the United States by the any of the Acquired Companies, the Acquired Companies strictly complied with all applicable requirements of the WARN Act and provided any and all notice and associated compensation to employees as required by applicable Legal Requirements.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s employees is terminable by Neither the Company at will.
(b) The Company nor any of its Subsidiaries is not a party to, nor bound by, to any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or a labor organization representing any of its employees; and no employees , and, to the knowledge of the Company are represented by any labor union Company, no such collective bargaining agreement or labor organization with respect to their employment with the Companyother Contract is currently being negotiated. Since January 1, 20182016, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, slowdown, work stoppage, material labor dispute or other union organizing activity or disputeactivity, or any threat thereof, by any employees of the Company or its Subsidiaries with respect to their employment with the Company.
(c) Company or its Subsidiaries. Since January 1, 20192016, the Company has been complied in all material compliance respects with all applicable Legal Requirements related to employment and labor matters, including fair employment practices, includingwages, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child laborclassification of Table of Contents employees as exempt and non-exempt, classification of independent contractors and other contingent workers, discrimination, harassment, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, employee health and safety, collective bargaining, terminations, reductions-in-force and plant closures. No material Legal Proceeding relating to employment or labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this Agreementmatters is pending or, to the knowledge of the Company, no allegations of sexual harassment threatened against or misconduct have been made against (i) any officer, or director of affecting the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Companyits Subsidiaries.
(eb) To the knowledge of the Company, no employee of the The Company is in any respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary information.
(f) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(g) Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms has either delivered or made available to Parent prior to the execution of this Agreement in accordance a list setting forth all current U.S. employees including for each such individual, as applicable: employee identification number, employing or engaging entity, work location, base salary or wage rate, exempt or non-exempt status, incentive compensation and visa and green card application status. To the knowledge of the Company, no employee or independent contractor is a party to, or is otherwise bound by, any Contract that materially adversely affects or restricts the performance of such individual’s duties for the Company or any of its Subsidiaries. The employment of each U.S. employee of the Company or any of its Subsidiaries is terminable at-will. To the knowledge of the Company, no current employee of the Company or any of its Subsidiaries at the level of Vice President or above has given notice of termination of employment or otherwise disclosed plans to terminate employment with the Company within the next twelve (12) months. No employee of the Company or any of its Subsidiaries has a principal place of employment outside the United States or is subject to the labor and employment laws of any country other than the United States.
(c) Section 3.17(l); 3.16(c) of the Company Disclosure Schedule sets forth an accurate and agreements with consultants entered into in complete list of the ordinary course of business consistent with past practiceEmployee Plans (other than any equity grant notices and related documentation). The To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule accurate and complete copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor, (iii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iiiiv) the most recent summary plan descriptions and any material modifications thereto, (v) the most recent nondiscrimination tests required to be performed under the Code (including 401(k) and 401(m) tests) for each Employee Plan, and (vi) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable)Plan.
(hd) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA Affiliate has ever sponsored, maintained, contributed to, or been required to contribute to (i) a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan will fail to be deductible due to the operation of Section 280G of the Code.
(l) The Company has delivered or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (a “multiple employer welfare arrangement” within the meaning of Section 409A 3(40) of ERISA, (iii) a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the CodeCode or other funding arrangement for the provision of welfare benefits (such disclosure to include the amount of any such funding), or (iv) and is otherwise not subject to a multiple employer plan (as defined in Section 409A 4063 or 4064 of the Code.
(m) ERISA). Each Employee Plan maintained for the benefit of any employee that provides health, life or service provider (other welfare or former employee or service provider) who performs services outside the United States welfare-type benefits is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, fully insured by a Material Adverse Effectthird party insurance company.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) The Company has provided, or will provide within ten (10) days following the date of this Agreement, to Parent a census (the “Census”) that contains a true, correct, and complete list, as of a recent practicable date, of, for each employee, the names, current annual base salary or current hourly wages, as applicable, last annual bonus received, target bonus opportunity, title, hire date, employer, principal work location, whether full-time or part-time and status as being exempt or non-exempt from the application of state and federal wage and hour laws. Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Companies’ employees is terminable by the applicable Acquired Company at will, subject to any severance rights contained in any applicable Employee Plan. No later than the Effective Time, the Company shall provide to Parent an updated Census, setting forth the information provided for in this Section 3.17(a) as of immediately prior to the Closing and shall also include each individual independent contractor engaged by any Acquired Company and such contractor’s name, duties and rate of compensation.
(b) The No Acquired Company is not a party to, nor or bound by, any collective bargaining agreement or any other labor-related Contract Contract, agreement, understanding or arrangements arrangement with any labor union or other labor organization representing any of its employees; , and no employees of the any Acquired Company are represented by any labor union or other labor organization with respect to their employment with the any Acquired Company. Since January 1, 20182022, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, slowdown, interruption of work or other union organizing activity or dispute, or or, to the knowledge of the Company, any threat thereof, by any employees of the any Acquired Company with respect to their employment with the CompanyAcquired Companies.
(c) Since January 1, 20192022, the each Acquired Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, including all laws respecting terms and conditions of employment, health and safety, wages and hours, overtime, meals and rest breaks, employee and independent contractor classification, child labor, immigrationimmigration and work authorization, employment discrimination, harassment, health and safety, disability rights or benefits, equal opportunity, plant closures and layoffs, civil rights, affirmative action, workers’ compensation, labor relations, continuation coverage under group health plans, wage payment, employee leave issues and unemployment insurance. The Acquired Companies are, and have been since January 1, 2022, in material compliance with the WARN Act and have no material liabilities or other material obligations thereunder.
(d) In Since January 1, 2022, no allegations of sexual harassment or misconduct or workplace discrimination or harassment (including based on race, ethnicity, gender or any other class protected by applicable Legal Requirements) have been made against any current or former officer, director or supervisory-level Company Associate through the three-year period prior Company’s Human Resources department or other prescribed reporting procedure or otherwise to the date knowledge of this Agreementthe Company, and none of the Acquired Companies nor, to the knowledge of the Company, no any current or former Company Associate has entered into any settlement agreement related to any such allegations by any such Person in respect of sexual harassment or misconduct have been made against (i) any officer, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Acquired Company.
(e) To the knowledge of the Company as of the date of this Agreement, no current or former employee of any Acquired Company, no employee at the level of the Company vice president or higher, is in violation in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, agreement or restrictive covenant or other obligation: (i) with or to the any Acquired Company or (ii) with or to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the any Acquired Company or (B) the knowledge or use of trade secrets in or proprietary information.
(f) To the knowledge of the CompanyCompany as of the date of this Agreement, no current employee of the Company, any Acquired Company at the level of Vice President vice president or higher, intends higher has expressed a current intention to terminate his or her employmentemployment with an Acquired Company.
(g) Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement and such forms have been disclosed in accordance with Section 3.17(l); and agreements with consultants entered into in 3.17(g) of the ordinary course of business consistent with past practiceCompany Disclosure Schedule). The Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule copies of, to the extent applicable: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable)Plan.
(h) Neither the No Acquired Company nor any other Person that would be orof their ERISA Affiliates sponsors, at maintains, administers or contributes to (or has any relevant timeobligation to contribute to), would have been considered a single employer with or has, during the Company under the Code or ERISA has ever past six (6) years, sponsored, maintained, administered or contributed to, to (or been required to contribute to), or has during the past six (6) years or is reasonably expected to a have any direct or indirect liability with respect to, any plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the no Acquired Company is not and or could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims claims, actions, suits, investigations, audits or proceedings by, on behalf of or with respect to any Employee Plan, by any current or former employee of any Acquired Company or beneficiary covered under any such plan, or otherwise involving any such plan Employee Plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the no Acquired Company nor any Employee Plan has any present or future obligation to provide post-retirement, post-employment or post-service medical, dental, disability, hospitalization, life or similar health or welfare benefits to or make any payment to, or with respect to, any present or former employee, officer officer, director or director individual independent contractor of the Company any Acquired Company, including pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.82.08, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the any Acquired Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or other service provider, (iii) directly or indirectly cause the any Acquired Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan or (iv) limit or restrict the right of the Company to amend or terminate any Employee Plan. No amounts payable under an Employee Plan .
(l) The consummation of the Transactions will fail to be deductible due to not (either alone or in combination with other events or circumstances) result in any “excess parachute payment” within the operation meaning of Section 280G of the Code. No Employee Plan is a “nonqualified deferred compensation plan” within the meaning of Section 409A or 457A of the Code. None of the Acquired Companies has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, officer, director or individual independent contractor or other service provider of any Acquired Company for any Tax incurred by such Person, including under Section 409A, 457A or 4999 of the Code.
(lm) The Company has delivered or made available to Parent copies of the Company Equity Plans and the standard forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(mn) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) The Company has provided, or will provide within ten (10) days following the date of this Agreement, to Parent a census (the “Census”) that contains a true, correct, and complete list, as of a recent practicable date, of, for each employee, the names, current annual base salary or current hourly wages, as applicable, last annual bonus received, target bonus opportunity, title, hire date, employer, principal work location, whether full-time or part-time and status as being exempt or non-exempt from the application of state and federal wage and hour laws. Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Companies’ employees is terminable by the applicable Acquired Company at will, subject to any severance rights contained in any applicable Employee Plan. No later than the Effective Time, the Company shall provide to Parent an updated Census, setting forth the information provided for in this Section 3.17(a) as of immediately prior to the Closing and shall also include each individual independent contractor engaged by any Acquired Company and such contractor’s name, duties and rate of compensation.
(b) The No Acquired Company is not a party to, nor or bound by, any collective bargaining agreement or any other labor-related Contract Contract, agreement, understanding or arrangements arrangement with any labor union or other labor organization representing any of its employees; , and no employees of the any Acquired Company are represented by any labor union or other labor organization with respect to their employment with the any Acquired Company. Since January 1, 20182022, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, slowdown, interruption of work or other union organizing activity or dispute, or or, to the knowledge of the Company, any threat thereof, by any employees of the any Acquired Company with respect to their employment with the CompanyAcquired Companies.
(c) Since January 1, 20192022, the each Acquired Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, including all laws respecting terms and conditions of employment, health and safety, wages and hours, overtime, meals and rest breaks, employee and independent contractor classification, child labor, immigrationimmigration and work authorization, employment discrimination, harassment, health and safety, disability rights or benefits, equal opportunity, plant closures and layoffs, civil rights, affirmative action, workers’ compensation, labor relations, continuation coverage under group health plans, wage payment, employee leave issues and unemployment insurance. The Acquired Companies are, and have been since January 1, 2022, in material compliance with the WARN Act and have no material liabilities or other material obligations thereunder.
(d) In Since January 1, 2022, no allegations of sexual harassment or misconduct or workplace discrimination or harassment (including based on race, ethnicity, gender or any other class protected by applicable Legal Requirements) have been made against any current or former officer, director or supervisory-level Company Associate through the three-year period prior Company’s Human Resources department or other prescribed reporting procedure or otherwise to the date knowledge of this Agreementthe Company, and none of the Acquired Companies nor, to the knowledge of the Company, no any current or former Company Associate has entered into any settlement agreement related to any such allegations by any such Person in respect of sexual harassment or misconduct have been made against (i) any officer, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Acquired Company.
(e) To the knowledge of the Company as of the date of this Agreement, no current or former employee of any Acquired Company, no employee at the level of the Company vice president or higher, is in violation in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, agreement or restrictive covenant or other obligation: (i) with or to the any Acquired Company or (ii) with or to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the any Acquired Company or (B) the knowledge or use of trade secrets in or proprietary information.
(f) To the knowledge of the CompanyCompany as of the date of this Agreement, no current employee of the Company, any Acquired Company at the level of Vice President vice president or higher, intends higher has expressed a current intention to terminate his or her employmentemployment with an Acquired Company.
(g) Section Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement and such forms have been disclosed in accordance with Section 3.17(l); and agreements with consultants entered into in Section 3.17(g) of the ordinary course of business consistent with past practiceCompany Disclosure Schedule). The Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule copies of, to the extent applicable: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable)Plan.
(h) Neither the No Acquired Company nor any other Person that would be orof their ERISA Affiliates sponsors, at maintains, administers or contributes to (or has any relevant timeobligation to contribute to), would have been considered a single employer with or has, during the Company under the Code or ERISA has ever past six (6) years, sponsored, maintained, administered or contributed to, to (or been required to contribute to), or has during the past six (6) years or is reasonably expected to a have any direct or indirect liability with respect to, any plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the no Acquired Company is not and or could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims claims, actions, suits, investigations, audits or proceedings by, on behalf of or with respect to any Employee Plan, by any current or former employee of any Acquired Company or beneficiary covered under any such plan, or otherwise involving any such plan Employee Plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the no Acquired Company nor any Employee Plan has any present or future obligation to provide post-retirement, post-employment or post-service medical, dental, disability, hospitalization, life or similar health or welfare benefits to or make any payment to, or with respect to, any present or former employee, officer officer, director or director individual independent contractor of the Company any Acquired Company, including pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8Section 2.08, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the any Acquired Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or other service provider, (iii) directly or indirectly cause the any Acquired Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan or (iv) limit or restrict the right of the Company to amend or terminate any Employee Plan. No amounts payable under an Employee Plan .
(l) The consummation of the Transactions will fail to be deductible due to not (either alone or in combination with other events or circumstances) result in any “excess parachute payment” within the operation meaning of Section 280G of the Code. No Employee Plan is a “nonqualified deferred compensation plan” within the meaning of Section 409A or 457A of the Code. None of the Acquired Companies has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, officer, director or individual independent contractor or other service provider of any Acquired Company for any Tax incurred by such Person, including under Section 409A, 457A or 4999 of the Code.
(lm) The Company has delivered or made available to Parent copies of the Company Equity Plans and the standard forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(mn) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will.
(b) The Company No Acquired Corporation is not a party or otherwise subject to, nor bound byor has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or a labor organization representing any of its employees; employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company are represented by any labor union or labor organization with respect to their employment with the Companyan Acquired Corporation. Since January 1, 20182011, there has not been any unfair labor practice chargestrike, material grievanceslowdown, material arbitration, strikework stoppage, lockout, or other job action, picketing, labor dispute, question concerning labor representation, union organizing activity or disputeactivity, or any threat thereof, by or any employees similar activity or dispute, affecting the Acquired Corporation or any of the Company with respect to their employment with the Company.
(c) Since January 1employees. There is not now pending, 2019, the Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this Agreementand, to the knowledge of the Company, no allegations of sexual harassment Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute, question regarding labor representation or misconduct have union organizing activity or any similar activity or dispute. Since January 1, 2011, there has been made against (i) any officerno material Legal Proceeding pending or, or director of the Company or (ii) any employee of the Company who, directly or indirectly, supervises other employees of the Company.
(e) To to the knowledge of the Company, no employee threatened relating to employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, whistle blower, breach of public policy, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 2011, the Acquired Corporations have complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, wages, hours, compensation, termination of employment and/or other terms and conditions of employment (including the classification and compensation of employees for purposes of the Company is Fair Labor Standards Act and cognate state laws) and other Legal Requirements in any respect in violation of any term of any employment agreementreduction in force, nondisclosure agreementincluding notice, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary informationinformation and consultation requirements.
(fc) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(g) Section 3.17(gPart 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete list of each material all Employee Plan Plans (other than any individual equity grant notices and award agreements and related documentation, agreements or offer letters with respect to at-will employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 3.17(l); and agreements with consultants consultants, in each case, entered into in the ordinary course of business consistent with past practiceand which contain terms that are the same in all material respects to the form of such notices, letters, agreements and documentation listed on Part 3.16(c) of the Company Disclosure Schedule). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule accurate and complete copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iiiiv) the most recent summary plan descriptions and any material modifications thereto, (v) the most recent nondiscrimination tests required to be performed under the Code (including 401(k) and 401(m) tests) for each Employee Plan, and (vi) all material correspondence to or from the IRS, the United States Department of Labor DOL, or any other Governmental Body with respect to an Employee Plan and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable)since January 1, 2011.
(hd) Neither the Company any Acquired Corporation nor any other Person that would be or, at any relevant time, would have been considered under common control or is treated as a single employer with the Company under the Code or ERISA has ever sponsored, maintained, contributed to, or been required to contribute to a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(ie) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans is now and has been operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. The Acquired Corporations are not, except as has not hadnor reasonably could be, subject to either a material liability, material fine, or would material penalty under ERISA or the Code relating to the Employee Plans. For the last six (6) years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not reasonably be expected to have, individually in any material respect in default under or in the aggregateviolation of, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, orand, to the knowledge of the Company, threatened in writing there is no default or anticipated material claims byviolation by any other party to, on behalf of or with respect to any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(jf) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company any Acquired Corporation nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present current or former employee, officer or director of the Company Associate pursuant to any retiree medical benefit plan or other retiree welfare plan.
(kg) Except as provided in Section 2.8Neither the execution of this Agreement, the obtaining of stockholder approval nor the consummation of the Transactions will not (either alone or including in combination with other events or circumstances) will (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company Associate to severance pay, unemployment compensation compensation, transaction bonus or any other payment, (ii) accelerate the time of payment payment, funding or vesting, or increase the amount ofamount, of compensation or benefits due to any such employeecurrent or former Company Associate, director, officer, independent contractor or (iii) directly or indirectly cause the Company Acquired Corporations to transfer or set aside any material assets to fund any payments or benefits under any Employee Plan. No amounts payable , (iv) otherwise give rise to any material liability under an any Employee Plan will fail or (v) limit or restrict the right to be deductible due to amend, terminate or transfer any material assets of any Employee Plan on or following the operation of Section 280G of the CodeEffective Time.
(lh) The Company has delivered Each Employee Plan or made available other Contract that is subject to Parent copies Section 409A of the Company Equity Plans Code has been administered in compliance with the applicable Employee Plan or Contract terms and the forms of all agreements operational and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning documentary requirements of Section 409A of the Code) Code and is the regulations thereunder, except for any instances of noncompliance by the Acquired Corporations that do not have or would not reasonably be expected to result in a material liability to the Acquired Corporations or any current or former Company Associate. The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise not subject reimburse any current or former service provider to the Acquired Corporation for any tax incurred by such service provider pursuant to Section 409A of the Code.
(m) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ambit Biosciences Corp)
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment of each of the Company’s U.S. employees is terminable by the Company at will.
(b) The Except as set forth in Section 2.16(b) of the Company Disclosure Schedule, no Acquired Company is not a party to, nor to or otherwise bound by, by any collective bargaining agreement or any other labor-related Contract or arrangements with any a labor union or labor organization representing any of its employees; and . Except as set forth in Section 2.16(b) of the Company Disclosure Schedule, there is no pending or threatened, nor has there been since January 1, 2016, any, strike, lockout, walkout, work stoppage, slow down, dispute or other union organizing activity, by any employees of the Company are represented by any labor union or labor organization Acquired Companies with respect to their employment with the Company. Since January 1, 2018, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, or other union organizing activity or dispute, or any threat thereof, by any employees of the Company with respect to their employment with the Acquired Company.
(c) Since January 1, 20192016, the each Acquired Company has been complied in all material compliance respects with all applicable Legal Requirements and laws related to labor relations, employment and employment practices, includingincluding tax withholding, without limitationequal employment opportunity, all discrimination, harassment, retaliation, immigration status, disability rights or benefits, applicant and employee background checking, the Worker Adjustment and Retraining Notification Act of 1988, as amended, and any similar foreign, state or local laws respecting (collectively, “WARN”), equal pay, family and medical leave and other leaves of absence, worker classification, independent contractor arrangements, terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, wages, hours of work and occupational safety and health. Except as set forth in Section 2.16(c) of the Company Disclosure Schedule, there are, and since January 1, 2016 there have been, no Legal Proceedings pending or threatened in writing against any Acquired Company relating to its labor relationsand employment practices or any current or past director, officer or employee leave issues and unemployment insuranceof any Acquired Company.
(d) In the three-year period prior to the date of this AgreementThere has been no “mass layoff”, to the knowledge of the Company, no allegations of sexual harassment “plant closing” or misconduct have been made against (i) any officerother event that triggered WARN, or director of the Company any early retirement, separation or (ii) exit incentive program, in each case affecting any employee of the Company who, directly or indirectly, supervises other employees of the CompanyAcquired Companies, since January 1, 2017, nor has any Acquired Company announced any such action or program for the future. Each independent contractor of Acquired Companies is properly classified as an independent contractor under any applicable Legal Requirements and each exempt and non-exempt employee is properly characterized as such under the applicable Legal Requirements of all jurisdictions in which the Acquired Companies maintain employment relationships.
(e) To the knowledge of the Company, no employee of the Company is in any respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or (ii) to a former of employer of any such employee relating to (A) the right of any such employee to be employed by the Company or (B) the knowledge or use of trade secrets in proprietary information.
(f) To the knowledge of the Company, no current employee of the Company, at the level of Vice President or higher, intends to terminate his or her employment.
(g) Section 3.17(g2.16(e) of the Company Disclosure Schedule sets forth a an accurate and complete list of each all material Employee Plan (other than any employment or severance agreement for non-executive employees Plans. Section 2.16(e) of the Company; equity grant noticesCompany Disclosure Schedule separately identifies, agreements and instruments by country, the Employee Plans that do provide benefits to Company Associates that are employed or providing services outside of the United States (the “Foreign Plans”). The Company does not materially deviate from the forms delivered have any formal plan or made available commitment to Parent prior create any additional Employee Plans or to the execution of this Agreement in accordance with Section 3.17(l); and agreements with consultants entered into in the ordinary course of business consistent with past practice)modify, change or terminate any existing Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement Agreement, with respect to each material Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule Plan, accurate and complete copies of, as applicable: (i) all plan documents and all amendments amendments, riders and schedules thereto, and all related trust trust, insurance, annuity or other funding documentsdocuments and all amendments, riders and schedules thereto, and in the case of unwritten Employee Plans, written descriptions thereof; (ii) all determination letters or opinion letters issued by the IRS or the United States Department of Labor (“DOL”); (iii) the most recent annual actuarial valuation, if any, and ; (iv) the three most recent annual report reports (Form Series 5500 and all schedules and financial statements attached thereto), ; (iiiv) the most recent summary plan description and any summaries of material modifications thereto; (vi) the most recent compliance and nondiscrimination tests required to be performed under the Code for each Employee Plan; and (vii) all material correspondence to or from the IRS, the United States Department of Labor DOL, the Pension Benefit Guaranty Corporation or any other Governmental Body with respect to an Employee Plan. For purposes of the listing and disclosure obligations set forth in this Section 2.16(e) only, a material Employee Plan shall not include any standard employment agreement or contract with a Company Associate who is employed or providing services outside of the United States (A) if such Company Associate receives or is anticipated to receive annual total compensation less than $150,000 and (ivB) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable)such employment agreement or contract only provides for base salary and other statutorily-required payments or benefits.
(hf) Section 2.16(f) of the Company Disclosure Schedule sets forth, for each of the employees listed on Section 4.2(b)(iv)(D) of the Company Disclosure Schedule, the base salary and any benefits or arrangements provided to such employee but not provided to other employees based in the same jurisdiction as such employee.
(g) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code of its Subsidiaries or ERISA has Affiliates currently sponsor, maintain, contribute to, or are required to contribute to, or have ever sponsored, maintained, contributed to, or been required to contribute to to, a plan that (i) is or was a “multiemployer plan” (as such term is defined in Section 3(37) of ERISA), (ii) is or was a “defined benefit plan” (as such term is defined in Section 3(35) of ERISA) or any other plan that is or was subject to Section 412 of the Code or Title IV of ERISA or is or was subject to the minimum funding standards of Section 412 of the Code or Section 412302 of ERISA, including any (iii) is or was a “single employermultiple employer plan” (as such term is defined benefit plan in ERISA or any the Code); (iv) is or was a “multiemployer plan,voluntary employees’ beneficiary association” each (as such term is defined in Section 4001 501(c)(9) of ERISAthe Code) or a “funded welfare plan” (as such term is defined in Section 419 of the Code); or (v) is or was an “employee stock ownership plan” (as such term is defined in Section 4975(e)(7) of the Code) or that otherwise invested or invests in “employer securities” (as such term is defined in Section 409(l) of the Code).
(ih) Each of Employee Plan has been established, operated and funded in compliance, in all material respects, with its terms and with applicable Legal Requirements, including ERISA and the Code. Each Employee Plans Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, on which it can rely and, to the knowledge of the Company, there are no existing circumstances or any events that have event has occurred that would could reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each No non-exempt “prohibited transaction” (as defined in Section 4975 of the Employee Plans Code or Section 406 of ERISA) has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not occurred which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge subject any of the Company, any of its Subsidiaries, any Employee Plan or any of its related trusts to any Tax or penalty imposed under Section 4975 of the Company is not Code or Section 502 of ERISA, and no event has occurred and no condition exists that could not reasonably be expected to be subject any of the Company, any of its Subsidiaries, any Employee Plan or any of its related trusts to a any Tax, penalty, Encumbrance, fine or other liability pursuant to Section 502 of imposed by ERISA or a Tax imposed pursuant the Code with respect to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or any Employee Plan. No Legal Proceeding (other than claims for benefits in the aggregate, a Material Adverse Effect. There are no pending, ordinary course) is pending or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan or the assets of any Employee Plan. All social insurance amounts with respect to Company Associates, and all contributions, premiums and payments with respect to each Employee Plan, that are required to be made by the Company or any employee of its Subsidiaries with respect to periods ending on or beneficiary covered under any such planprior to the Closing Date have been, or otherwise involving any such plan (other than routine claims for benefits)will be, except as has not had, timely made or would not reasonably be expected to have, individually or in accrued before the aggregate, a Material Adverse EffectClosing Date.
(ji) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state state, local or local foreign Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any of its Subsidiaries nor any Employee Plan has any present current or future obligation obligation, under an Employee Plan or otherwise, to provide post-employment or retiree welfare benefits to, or to or make any payment to, to or with respect to, any present Company Associate (or former employee, officer eligible dependents or director beneficiaries of such Company Associate).
(j) Except as set forth in Section 2.16(j) of the Company pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the Transactions will not (either alone or including in combination with other events or circumstances) will (i) entitle increase any current or former employee, director, officer, independent contractor or other service provider of the Company to severance pay, unemployment compensation or benefits otherwise payable under any other paymentEmployee Plan or Contract with any Company Associate, (ii) accelerate entitle any Company Associate to any payment or benefit or any forgiveness of indebtedness, (iii) result in the acceleration of the time of payment payment, funding or vesting, or increase the amount of, compensation or benefits due to vesting of any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan or Contract with any Company Associate, (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend, terminate or receive a reversion of assets from any Employee Plan. No amounts payable under an Employee Plan will fail to , or (v) result in the payment of any amount that would, individually or in combination with any other such payment, not be deductible due to the operation by reason of Section 280G of the Code.
(k) Each Employee Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code. The Company does not have an obligation to gross-up, indemnify or otherwise reimburse any Company Associate for any Tax incurred pursuant to Section 409A or Section 4999 of the Code.
(l) The Company has delivered or made available to Parent or Parent’s Representatives copies of (i) the Company Equity Plans Plan and the forms of all award agreements and instruments relating to or issued under the Company Equity PlansPlan and (ii) each other Contract governing the terms of a Company Option or Company SAR. Each outstanding Company Option and Company SAR has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(m) Each Employee Foreign Plan maintained for that is required to be registered or approved by any Governmental Body under the benefit Legal Requirements of any employee or service provider (or former employee or service provider) who performs services outside the United States is now and applicable foreign country has been operated in material compliance with its terms and all applicable Legal Requirements, except so registered or approved. Except as has not hadresulted in, or would not not, individually or in the aggregate, reasonably be expected to havehave or result in, individually or in the aggregate, a Material Adverse Effectmaterial liability to the Company, the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and the Transactions will not cause any such assets or insurance obligations to be less than such benefit obligations.
Appears in 1 contract
Samples: Merger Agreement (Gaming Partners International CORP)
Employee Matters; Benefit Plans. (a) Except as required by applicable Legal Requirements, the employment or service of each of the Company’s employees Company Associates (as applicable) is terminable by the employing Acquired Company at will.
(b) The No Acquired Company is not a party to, nor bound by, any collective bargaining agreement or any other labor-related Contract or arrangements with any labor union or labor organization representing any of its employees; , and no employees of the Company Associates are represented by any labor union or labor organization with respect to their employment with the any Acquired Company. Since January 1, 2018In the three-year period prior to the date of this Agreement, there has not been any unfair labor practice charge, material grievance, material arbitration, strike, lockout, or other union organizing activity or dispute, or any threat thereof, by any employees of the Company Associates with respect to their employment with the any Acquired Company.
(c) Since January 1In the three-year period prior to the date of this Agreement, 2019, the each Acquired Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, employee classification, child labor, immigration, employment discrimination, harassment, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(d) In the three-year period prior to the date of this Agreement, to the knowledge of the Company, no allegations of sexual harassment or misconduct have been made against (i) any officer, or director of the Company or (ii) any employee of the Company Associates who, directly or indirectly, supervises other employees of the CompanyCompany Associates.
(e) To the knowledge of the Company, no employee of the Company Associate is in any respect in violation of any term of any employment agreement, consulting agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the any Acquired Company or (ii) to a former of employer of any or entity formerly engaging such employee Company Associate relating to (A) the right of any such employee Company Associate to be employed or engaged by the Acquired Company or (B) the knowledge or use of trade secrets in proprietary information.
(f) To the knowledge of the Company, no current employee of the any Acquired Company, at the level of Vice President or higher, intends to terminate his or her employmentemployment with the Acquired Company.
(g) Section 3.17(g) of the Company Disclosure Schedule sets forth a list of each material Employee Plan (other than any employment or severance agreement for non-executive employees of the Company; equity grant notices, agreements and instruments that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 3.17(l); and agreements with consultants entered into in the ordinary course of business consistent with past practice). The Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each Employee Plan listed on Section 3.17(g) of the Company Disclosure Schedule copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan Plan, and (iv) the most recent determination letter received from the IRS with respect to the Employee Plan (if applicable).
(h) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company under the Code or ERISA has ever sponsored, maintained, contributed to, or been required to contribute to to, or had any other material liability with respect to, a plan subject to Section 302 or Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA.
(i) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plans has been operated in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened in writing or anticipated material claims by, on behalf of or with respect to any Employee Plan, by any employee Company Associate or his or her beneficiary covered under any such planEmployee Plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), or where the full cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the any Acquired Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company Associate pursuant to any retiree medical benefit plan or other retiree welfare plan.
(k) Except as provided in Section 2.8, the consummation of the Transactions will not (either alone or in combination with other events or circumstances) (i) entitle any current or former employeeCompany Associate to any change of control, directorretention, officertransaction bonus, independent contractor or other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor Company Associate or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any payments or benefits under any Employee Plan. No amounts payable under an Employee Plan will fail to be deductible due to the operation of Section 280G of the Code.
(l) The Company has delivered or made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(m) Each Employee Plan maintained for the benefit of any employee or service provider (or former employee or service provider) Company Associate who performs services outside the United States is now and has been operated in material compliance with its terms and all applicable Legal Requirements, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
