Employee Matters; ERISA. (a) Schedule 3.15(a) sets forth a list of all full-time employees, part-time employees, directors, consultants and independent contractors as of the date hereof and sets forth each individual’s title (or, with respect to consultants and independent contractors over the past year, a brief description of the nature of work performed), service dates, visa status and type for employees who are not U.S. citizens and are employed in the United States, status as exempt or non-exempt, and all compensation, including salary, guaranteed bonus, commissions, severance obligations, profit sharing, incentive plan, phantom equity Contract or plan and deferred compensation paid or payable for each employee, director, consultant and independent contractor of the Company and the work location of each such employee, director, consultant and independent contractor. (b) To the Company’s Knowledge, none of its directors, officers, employees, consultants, independent contractors, agents or representatives is obligated under any Contract or subject to any Order of any court or administrative agency, that would interfere with such individual’s ability to provide services to the Company. Neither the execution or delivery by the Company of the Transaction Agreements, nor the carrying on of the Company’s business by any such individual, nor the conduct of the business as currently conducted and as presently proposed by the Company to be conducted (as indicated on the Product Roadmap), will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract under which any such individual is now obligated. (c) Other than compensation and benefits due and payable in the ordinary course of business and consistent with past practices, the Company (or Insperity) has paid to its employees, consultants, independent contractors, and other service providers all wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any other paid benefits and any other compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied with, and is in compliance in all material respects with, all applicable local, state, and federal laws respecting employment, employment practices, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in force, worker classification and wages, leave, workers’ compensation, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliation. The Company has withheld and paid to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. (d) Since January 1, 2017, the Company (or Insperity) has conducted background checks of the Company’s employees when required by business need or contract, and obtained all required consent forms. The Company’s use of information obtained from such background checks has been and is compliant in all material respects with all applicable laws and background check reports and verifications have been maintained consistent in all material respects with all applicable law, including applicable privacy and data security laws. The Company further complied in all material respects with the Fair Credit Reporting Act and other state or local laws prior to taking any adverse employment action. (e) To the Company’s Knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as an employee of the Company. The Company does not have a present intention to terminate the employment of any employee. The employment of each employee of the Company is terminable at the will of the Company without modification by an employment agreement, except as otherwise required by applicable Law. Except as required by Law or as set forth in any written agreement, upon termination of the employment of any at-will employees, no severance or other payments will become due. The Company has no policy, practice, plan, or program of paying severance pay or any form of severance compensation to at-will employees in connection with the termination of employment services. (f) None of the Company or, to the Company’s Knowledge, any Equityholder has made to any officer, employee, director, consultant or independent contractor, as applicable, any representations regarding equity incentives or other rights to or in respect of any Equity Interests in the Company. (g) Each former executive officer or vice president employee of the Company whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment. (h) Schedule 3.15(h) sets forth each Company Employee Plan. No Group Company has ever sponsored or maintained or had any Liabilities relating to any plan subject to Title IV of ERISA or any other defined benefit pension plan (whether or not subject to ERISA). No Group Company has any commitment or intent to amend any existing Company Employee Plan or create any new arrangement that would be a Company Employee Plan, except as required by applicable Law. Except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents), each Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with its terms, without the consent of plan participants and without liability to any Group Company other than ordinary administrative expenses and the payment of any accrued benefits. (i) With respect to each Company Employee Plan, the Company has made available to the Acquiror true, complete and correct copies of (to the extent applicable): (i) all documents pursuant to which the Company Employee Plan is maintained, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts or service provider agreements), other than such documents for a plan sponsored by Insperity that have not been provided to the Company; (ii) the three most recent annual reports (Form 5500 series); and, except for any such plan sponsored by Insperity (iii) the most recent determination, opinion, or advisory letter received from the IRS, except for any such plan sponsored by Insperity. (j) Each Company Employee Plan, and to the Company’s Knowledge, each Company Employee Plan sponsored by Insperity, has been operated and administered in all material respects in compliance with its terms and the applicable provisions of ERISA, the Code, and all other applicable Laws. With respect to each Company Employee Plan, and to the Company’s Knowledge, with respect to each Company Employee Plan sponsored by Insperity, all required payments, premiums, contributions, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued. (k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is a prototype or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status of such Company Employee Plan or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the plan. (l) There are no pending or, to the Company’s Knowledge, threatened actions, audits, suits, investigations or claims with respect to any Company Employee Plan (other than routine claims for benefits), except for the portion of such plan sponsored by Insperity which does not cover employees of the Company (or their dependents). To the Company’s Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Company, or any officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code, except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents). (m) Neither the execution and delivery of this Agreement nor transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plan, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefit.
Appears in 2 contracts
Samples: Merger Agreement (Q2 Holdings, Inc.), Merger Agreement
Employee Matters; ERISA. (a) Schedule 3.15(a) sets forth a list of all full-time employees, part-time employees, directorsManagers, consultants and independent contractors as of the date hereof and sets forth each individual’s 's title (or, with respect to consultants and independent contractors over the past year, a brief description of the nature of work performed), service dates, name of employing or engaging entity, visa status and type for employees who are not U.S. citizens and are employed of the jurisdiction in the United Stateswhich they provide services to a Group Company, status as exempt or non-exempt, and all compensation, including salary, guaranteed bonus, commissions, severance obligations, profit sharing, incentive plan, phantom equity Contract or plan plan, long-service pay and deferred compensation paid or payable for each employee, directorManager, consultant and independent contractor of the Company and the primary work location of each such employee, directorManager, consultant and independent contractor.
(b) To the Company’s 's Knowledge, none of its directorsmanagers, officers, employees, consultants, independent contractors, agents or representatives is obligated under any Contract or subject to any Order of any court or administrative agency, that would interfere with such individual’s 's ability to provide services to the any Group Company. Neither the execution or delivery by the Company of the Transaction Agreements, nor the carrying on of the Company’s 's business by any such individual, nor the conduct of the business as currently conducted and as presently proposed by the Company Proposed to be conducted (as indicated on the Product Roadmap)conducted, will, to the Company’s 's Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract under which any such individual is now obligated.
(c) Other than compensation and benefits due and payable in the ordinary course of business and consistent with past practices, the applicable Group Company (or InsperityLender Performance Group I, LLC) has paid to its employees, consultants, independent contractors, and other service providers all wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any other paid benefits and any other compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Each Group Company has complied with, and is in compliance in all material respects with, all applicable local, state, and federal laws respecting employment, employment practices, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in force, worker classification and wages, leave, workers’ ' compensation, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliation. The Each Group Company has withheld and paid to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all amounts required to be withheld from employees of the Group Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.
(d) Since January 1, 20172018, the Company or its Affiliates (or InsperityLender Performance Group I, LLC) has conducted background checks of the Group Company’s 's employees when required by business need or contract, and obtained all required consent forms. The Each Group Company’s 's use of information obtained from such background checks has been and is compliant in all material respects with all applicable laws Laws and background check reports and verifications have been maintained consistent in all material respects with all applicable lawLaws, including applicable privacy and data security lawsLaws. The Each Group Company further complied in all material respects with the Fair Credit Reporting Act and other state or local laws similar Laws prior to taking any adverse employment action.
(e) To the Company’s 's Knowledge, no Key Employee intends to terminate employment with the any Group Company or is otherwise likely to become unavailable to continue as an employee of the any Group Company. The No Group Company does not have has a present intention to terminate the employment of any employee. The employment of each employee of the Company Group Companies is terminable at the will of the applicable Group Company without modification by an employment agreement, except as otherwise required by applicable Law. Except as required by Law or as set forth in any written agreement, upon termination of the employment of any at-will employees, no severance or other payments will become due. The Company has no policy, practice, plan, or program written policy of paying severance pay or any form of severance compensation to at-will employees in connection with the termination of employment services.
(f) None of the No Group Company or, to the Company’s 's Knowledge, any Equityholder Member has made to any officer, employee, directormanager, consultant or independent contractor, as applicable, any representations regarding equity incentives or other rights to or in respect of any Equity Interests in the Company.
(g) Each Except as set forth on Schedule 3.15(g), each former executive officer or vice president employee of the any Group Company whose employment was terminated by the a Group Company on or after January 1, 2018 has entered into an agreement with the such Group Company providing for the full release of any claims against the such Group Company or any related party arising out of such employment.
(h) Schedule 3.15(h) sets forth each Company Employee Plan. No Group Company or any member of a controlled group (within the meaning of Code Section 414(a)) of any Group Companies (each an "ERISA Affiliate") has ever sponsored or maintained or had any Liabilities relating to any plan subject to Title IV of ERISA ERISA, Section 412 of the Code, or any other defined benefit pension plan (whether within the meaning of ERISA Section 3(35)). No Company Employee Plan that is a defined benefit pension plan (within the meaning of ERISA section 3(35)) has any unfunded or not subject underfunded (or uninsured or underinsured, where applicable) liabilities or obligations. At no time has a Group Company or any ERISA Affiliate thereof contributed to or been obligated to contribute to any multiemployer plan (as defined in Section 3(37) of ERISA). No Group Company has at any time ever maintained, established, sponsored, participated in or contributed to any multiple employer plan or to any plan described in Section 413 of the Code. No Group Company has any commitment or intent to amend any existing Company Employee Plan or create any new arrangement that would be a Company Employee Plan, except as required by applicable Law. Except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents), each Each Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with its terms, without the consent of plan participants and without liability to any Group Company other than ordinary administrative expenses and the payment of any accrued benefits.
(i) With respect to each Company Employee Plan, the Company has made available to the Acquiror true, complete and correct copies of (to the extent applicable): (i) correct and complete copies of all documents pursuant to which the Company Employee Plan is maintained, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts or service provider agreements), other than such documents for a plan sponsored or maintained by Insperity a governmental entity, a union/employer board of trustees, or any other entity that is not an ERISA Affiliate of a Group Company that have not been provided to the Company; (ii) the three most recent annual reports (Form 5500 series)) and all schedules and financial statements attached thereto; and, except for any such plan sponsored by Insperity for which there is no obligation under applicable Law to file such reports; (iii) the most recent determination, opinion, or advisory letter received from the IRSIRS or other applicable Governmental Body, except (iv) the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA or by any other applicable law with respect to each Company Employee Plan, (v) all material written Contracts relating to each Company Employee Plan, including all administrative service Contracts and group insurance Contracts, (vi) all material communications provided by the Company to any employee or employees relating to any Company Employee Plan and any proposed Company Employee Plan, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any material liability to the Company, (vii) all correspondence between the Company and any Governmental Entity relating to any Company Employee Plan, other than routine correspondence in the normal course of operations of such Company Employee Plan, (viii) model forms and related notices, if any, under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") or the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"), (ix) policies pertaining to fiduciary liability insurance covering the fiduciaries for any such each Company Employee Plan, if any, and (x) all discrimination tests for each Company Employee Plan for the three (3) most recent plan sponsored by Insperityyears, if any.
(j) Each Company Employee Plan, and to the Company’s Knowledge, each Company Employee Plan sponsored by Insperity, has been registered, operated and administered in all material respects in compliance with its terms and the applicable provisions of ERISA, the Code, and all other applicable Laws, including but not limited to automatic enrollment obligations under the UK Pensions Xxx 0000. With respect to each Company Employee Plan, and to the Company’s 's Knowledge, with respect to each Company Employee Plan sponsored by InsperityPlan, all required payments, premiums, contributions, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is a prototype or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s 's Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status of such Company Employee Plan or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the plan. No Company Employee Plan that is an "employee pension benefit plan," within the meaning of Section 3(2) of ERISA has ever held, within the meaning of ERISA, employer real property or employer securities as a plan assets.
(l) There are no pending or, to the Company’s 's Knowledge, threatened actions, audits, suits, investigations or claims with respect to any Company Employee Plan (other than routine claims for benefits), except for the portion of such plan sponsored or maintained by Insperity a governmental entity, a union/employer board of trustees, or any other entity that is not an ERISA Affiliate of a Group Company and which does not cover employees of the any Group Company (or their dependents). To the Company’s 's Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Company, or any officer, director manager or employee of any of the foregoing to a material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code, except for the portion of any plan sponsored by Insperity a governmental entity, a union/employer board of trustees, or any other entity that is not an ERISA Affiliate of a Group Company and which does not cover employees of the Company (or their dependents).
(m) No Group Company has ever maintained, established, sponsored, participated in or contributed to any self-insured plan that provides group health benefits to employees (including any such plan pursuant to which a stop loss policy or contract applies). Each Group Company and each Company Employee Plan has, prior to the date hereof, complied with the Patient Protection and Affordable Care Act of 2010, as amended, COBRA, the Family Medical Leave Act of 1993, as amended, HIPAA, the Women's Health and Cancer Rights Act of 1998, as amended, the Newborns' and Mothers' Health Protection Act of 1996, as amended, and any similar provisions of foreign or state law applicable to its employees or compliance with those provisions has been delegated to a third-party administrator, and no Group Company has any Knowledge of any non-compliance by such administrator. No Group Company has any unsatisfied obligations to any employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state or local Law governing health care coverage or extension (other than obligations which are currently being fulfilled by a Group Company). No Company Employee Plan provides, or reflects or represents any liability to provide, post termination or retiree life insurance, health or other welfare benefits to any person for any reason, except as may be required by COBRA, and no Group Company has represented, promised or contracted (whether in oral or written form) to any employee (either individually or to employees as a group) or any other person that such employee(s) or other person would be provided with life insurance, health or other employee welfare benefits post-termination, except to the extent required by statute.
(n) Neither the execution and delivery of this Agreement nor transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former directormanager, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plan, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefit.
Appears in 1 contract
Samples: Merger Agreement (Q2 Holdings, Inc.)
Employee Matters; ERISA. (a) As of the date hereof, the Company employs zero full-time employees and zero part-time employees and engages nine consultants or independent contractors. Section 4.15(a) the Disclosure Schedule 3.15(a) sets forth a list of all full-time employees, part-time employees, directors, consultants and independent contractors as of the date hereof and sets forth each individual’s title (or, with respect to consultants and independent contractors over the past year, a brief detailed description of the nature of work performed), service dates, visa status and type for employees who are not U.S. citizens and are employed in the United States, status as exempt or non-exempt, and all compensation, including including, as applicable, consulting fee(s) for each consultant and independent contractor and salary, guaranteed bonus, commissions, severance obligations, profit sharing, incentive plan, phantom equity Contract or plan obligations and deferred compensation paid or payable for each officer, employee, director, consultant and independent contractor of the Company and (if applicable) as of the work location of each such employee, director, consultant and independent contractordate hereof.
(b) To the CompanySeller’s Knowledge, none of its directors, officers, employees, consultants, independent contractors, agents or representatives employees (if any) is obligated under any Contract contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any Order judgment, decree or order of any court or administrative agency, that would materially interfere with such individualemployee’s ability to provide services to promote the interest of the Company or that would conflict with the Company’s business. Neither the execution or delivery by the Company of the Transaction Agreementsthis Agreement, nor the carrying on of the Company’s business by any such individualthe employees (if any) of the Company, nor the conduct of the Company’s business as currently now conducted and as presently proposed by the Company to be conducted (as indicated on the Product Roadmap)conducted, will, to the CompanySeller’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract contract, covenant or instrument under which any such individual employee is now obligated.
(c) Other than compensation and benefits due and payable The Company is not delinquent in the ordinary course payments to any of business and consistent with past practices, the Company its employees (or Insperity) has paid to its employeesif any), consultants, or independent contractors, and other service providers all contractors for any wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any or other paid benefits and any other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, consultants or independent contractors. The Company has complied with, and is in compliance in all material respects with, with all applicable local, state, state and federal equal employment opportunity laws respecting and with other laws related to employment, employment practicesincluding those related to wages, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in forcehours, worker classification and wages, leave, workers’ compensation, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliationbargaining. The Company has withheld is not obligated to withhold and paid pay to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all governmental entity amounts required to be withheld from employees of the employees. The Company and is not liable for any arrears of wages, taxes, penalties, penalties or other sums for failure to comply with any of the foregoingsums.
(d) Since January 1, 2017, the Company (or Insperity) has conducted background checks of the Company’s employees when required by business need or contract, and obtained all required consent forms. The Company’s use of information obtained from such background checks has been and is compliant in all material respects with all applicable laws and background check reports and verifications have been maintained consistent in all material respects with all applicable law, including applicable privacy and data security laws. The Company further complied in all material respects with the Fair Credit Reporting Act and other state or local laws prior to taking any adverse employment action.
(e) To the CompanySeller’s Knowledge, no Key Employee employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as an employee of employee, nor does the Company. The Company does not have a present intention to terminate the employment of any employeeof the foregoing. The employment of each employee (if any) of the Company is terminable at the will of the Company without modification by an employment agreement, except as otherwise required by applicable LawCompany. Except as required by Law or as set forth in any written agreementSection 4.15(d) of the Disclosure Schedule or as required by law, upon termination of the employment of any at-will such employees, no severance or other payments will become due. The Except as set forth in Section 4.15(d) of the Disclosure Schedule, the Company has no policy, practice, plan, plan or program of paying severance pay or any form of severance compensation to at-will employees in connection with the termination of employment services.
(fe) None of the The Company or, to the Company’s Knowledge, has not made any Equityholder has made representations regarding equity incentives to any officer, employee, director, director or consultant or independent contractor, as applicable, any representations regarding equity incentives or other rights to or in respect of any Equity Interests that are inconsistent with the share amounts and terms set forth in the minutes of meetings of the Company’s board of directors.
(gf) Each former executive officer or vice president employee of the Company (if any) whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.
(hg) Schedule 3.15(h) sets forth each The Company Employee Plan. No Group Company has ever sponsored does not maintain, establish or maintained sponsor, participate in or had contribute to, any Liabilities relating to any employee benefit plan subject to Title IV of ERISA or any other defined benefit pension plan (whether or not which is subject to ERISA). No Group .
(h) The Company has is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or intent arrangement with any labor union, and no labor union has requested or, to amend the Knowledge of the Seller, has sought to represent any existing of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company Employee Plan pending, or create any new arrangement that would be a to the Seller’s Knowledge, threatened, nor is the Company Employee Plan, except as required by applicable Law. Except for the portion aware of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents), each Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with labor organization activity involving its terms, without the consent of plan participants and without liability to any Group Company other than ordinary administrative expenses and the payment of any accrued benefitsemployees.
(i) With respect to each Company Employee PlanTo the Knowledge of the Seller, none of the employees (if any) or directors of the Company has made available been (a) subject to voluntary or involuntary petition under the Acquiror truefederal bankruptcy laws or any state insolvency law or the appointment of a receiver, complete fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and correct copies other minor offenses); (c) subject to any order, judgment or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (d) found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to the extent applicable): (i) all documents pursuant to have violated any federal or state securities, commodities, or unfair trade practices law, which the Company Employee Plan is maintained, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts such judgment or service provider agreements), other than such documents for a plan sponsored by Insperity that have finding has not been provided to the Company; (ii) the three most recent annual reports (Form 5500 series); andsubsequently reversed, except for any such plan sponsored by Insperity (iii) the most recent determination, opinionsuspended, or advisory letter received from the IRS, except for any such plan sponsored by Insperityvacated.
(j) Each Company Employee Plan, and to the Company’s Knowledge, each Company Employee Plan sponsored by Insperity, has been operated and administered in all material respects in compliance with its terms and the applicable provisions of ERISA, the Code, and all other applicable Laws. With respect to each Company Employee Plan, and to the Company’s Knowledge, with respect to each Company Employee Plan sponsored by Insperity, all required payments, premiums, contributions, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is a prototype or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status of such Company Employee Plan or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the plan.
(l) There are no pending or, to the Company’s Knowledge, threatened actions, audits, suits, investigations or claims with respect to any Company Employee Plan (other than routine claims for benefits), except for the portion of such plan sponsored by Insperity which does not cover employees of the Company (or their dependents). To the Company’s Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Company, or any officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code, except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents).
(m) Neither the execution and delivery of this Agreement nor transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plan, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefit.
Appears in 1 contract
Employee Matters; ERISA. (a) Schedule 3.15(aSection 2.10(a) sets forth of the Company Disclosure Letter contains a list of all full-time employeesmaterial Company Benefit Plans. For purposes of this Agreement, part-time employees, directors, consultants and independent contractors the term “Company Benefit Plans” means all employee benefit plans sponsored or maintained by the Company or its Subsidiaries as of the date hereof and sets forth covering present or former employees, officers or directors of the Company and of each individual’s title (orof its Subsidiaries or the beneficiaries or dependents thereof, or providing benefits to such persons in respect of services provided to any such entity, or with respect to consultants and independent contractors over which the past yearCompany or any of its Subsidiaries has, a brief description or has had, an obligation to contribute or any other liability, including, but not limited to, any employee benefit plans within the meaning of Section 3(3) of the nature Employee Retirement Income Security Act of work performed1974, as amended (“ERISA”), service dates, visa status and type for employees who are not U.S. citizens and are employed in the United States, status as exempt or non-exempt, and all any deferred compensation, including salary, guaranteed bonus, commissionsstock option, severance obligationsrestricted stock, incentive, profit sharing, incentive planretirement, phantom equity Contract savings, medical, health, life insurance, disability, sick leave, cafeteria or plan and deferred compensation paid or payable for each employeeflexible spending, director, consultant and independent contractor of the Company and the work location of each such employee, director, consultant and independent contractor.
(b) To the Company’s Knowledge, none of its directors, officers, employees, consultants, independent contractors, agents or representatives is obligated under any Contract or subject to any Order of any court or administrative agency, that would interfere with such individual’s ability to provide services to the Company. Neither the execution or delivery by the Company of the Transaction Agreements, nor the carrying on of the Company’s business by any such individual, nor the conduct of the business as currently conducted and as presently proposed by the Company to be conducted (as indicated on the Product Roadmap), will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract under which any such individual is now obligated.
(c) Other than compensation and benefits due and payable in the ordinary course of business and consistent with past practices, the Company (or Insperity) has paid to its employees, consultants, independent contractors, and other service providers all wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any other paid benefits unemployment compensation, employment, severance or change in control agreements, arrangements, programs, policies or plans and any other compensation for any service performed for it to the date hereof benefit arrangements or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied with, and is in compliance in all material respects with, all applicable local, state, and federal laws respecting employment, employment practices, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in force, worker classification and wages, leave, workers’ compensation, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliation. The Company has withheld and paid to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.
(d) Since January 1, 2017, the Company (or Insperity) has conducted background checks of the Company’s employees when required by business need or contract, and obtained all required consent forms. The Company’s use of information obtained from such background checks has been and is compliant in all material respects with all applicable laws and background check reports and verifications have been maintained consistent in all material respects with all applicable law, including applicable privacy and data security laws. The Company further complied in all material respects with the Fair Credit Reporting Act and other state or local laws prior to taking any adverse employment action.
(e) To the Company’s Knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as an employee of the Company. The Company does not have a present intention to terminate the employment of any employee. The employment of each employee of the Company is terminable at the will of the Company without modification by an employment agreement, except as otherwise required by applicable Law. Except as required by Law or as set forth in any written agreement, upon termination of the employment of any at-will employees, no severance or other payments will become due. The Company has no policy, payroll practice, planwhether funded or unfunded, insured or program of paying severance pay uninsured, written or any form of severance compensation to at-will employees in connection with the termination of employment services.
(f) None of the Company or, to the Company’s Knowledge, any Equityholder has made to any officer, employee, director, consultant or independent contractor, as applicable, any representations regarding equity incentives or other rights to or in respect of any Equity Interests in the Company.
(g) Each former executive officer or vice president employee of the Company whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.
(h) Schedule 3.15(h) sets forth each Company Employee Planunwritten. No Group Company has ever sponsored or maintained or had any Liabilities relating to any plan subject to Title IV of ERISA or any other defined benefit pension plan (whether or not subject to ERISA). No Group Company has any commitment or intent to amend any existing Company Employee Plan or create any new arrangement that would be a Company Employee Plan, except as required by applicable Law. Except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents), each Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with its terms, without the consent of plan participants and without liability to any Group Company other than ordinary administrative expenses and the payment of any accrued benefits.
(i) With respect to each Company Employee Benefit Plan, the Company has made available to the Acquiror true, complete and correct copies of (to the extent applicable): Parent (i) all documents pursuant to a true and correct copy of each Company Benefit Plan or, in the case of any Company Benefit Plan which is not in written form, an accurate description of the material provisions of such Company Employee Benefit Plan is maintainedas in effect on the date hereof, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts or service provider agreements), other than such documents for a plan sponsored by Insperity that have not been provided to the Company; (ii) the three most recent annual reports (Form 5500 series); andsummary plan description, except for any such plan sponsored by Insperity (iii) the most recent determinationannual report, opinionfinancial statement and/or actuarial report, or advisory (iv) the most recent determination letter received from the IRSIRS and/or the Puerto Rico Department of the Treasury, except for as applicable, including all schedules thereto, (v) any related trust agreements, insurance contracts or documents of any other funding arrangements, (vii) any written communications to or from the IRS or any office or representative of the Department of Labor or the Puerto Rico Department of the Treasury relating to any compliance issues in respect of any such plan sponsored by Insperity.
(j) Each Company Employee Benefit Plan, and (viii) all amendments, modifications or supplements to any such document. Except to the Company’s Knowledgeextent specifically made available to Parent, each Company Employee Plan sponsored by Insperity, has been operated and administered in all material respects in compliance with its terms and the applicable provisions of ERISA, the Code, and all other applicable Laws. With respect to each Company Employee Plan, and to the Company’s Knowledge, with respect to each Company Employee Plan sponsored by Insperity, all required payments, premiums, contributions, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is a prototype or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status of such Company Employee Plan or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the plan.
(l) There date hereof there are no pending or, to the Company’s Knowledge, threatened actions, audits, suits, investigations or claims with respect material amendments to any Company Employee Benefit Plan (other than routine claims for benefits)that have been adopted or approved, except for the portion of such plan sponsored by Insperity which does not cover employees of nor has the Company (or their dependents). To the Company’s Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Company, or any officer, director of its Subsidiaries undertaken to make any such amendments or employee of to adopt or approve any of the foregoing to a new material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code, except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents)Benefit Plan.
(m) Neither the execution and delivery of this Agreement nor transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plan, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefit.
Appears in 1 contract
Employee Matters; ERISA. (a) Schedule 3.15(a) sets forth a list As of all the date hereof, the Company employs 25 full-time employees, 1 part-time employees, directors, consultants employee and engages 1 consultant or independent contractors as of the date hereof and contractor. Schedule 2.15 sets forth each individual’s title (or, with respect to consultants and independent contractors over the past year, a brief detailed description of the nature of work performed), service dates, visa status and type for employees who are not U.S. citizens and are employed in the United States, status as exempt or non-exempt, and all compensation, including salary, guaranteed bonus, commissions, severance obligations, profit sharing, incentive plan, phantom equity Contract or plan and deferred compensation paid or payable for each employeeofficer, director, employee, consultant and independent contractor of the Company and the work location of each such employeeofficer, director, employee, consultant and independent contractor.
(b) To the Company’s Knowledge, none of its directors, officers, employees, consultants, independent contractors, agents or representatives employees is obligated under any Contract or subject to any Order of any court or administrative agency, that would interfere with such individualemployee’s ability to provide services to promote the interests of the Company or that would conflict with the Company’s business. Neither the execution or delivery by the Company of the Transaction Agreements, nor the carrying on of the Company’s business by any such individualthe employees of the Company, nor the conduct of the Company’s business as currently now conducted and as presently proposed by the Company to be conducted (as indicated on the Product Roadmap)conducted, will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract under which any such individual employee is now or has been obligated.
(c) Other than compensation and benefits due and payable The Company is not delinquent in the ordinary course payments to any of business and consistent with past practices, the Company (or Insperity) has paid to its employees, consultants, or independent contractors, and other service providers all contractors for any wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any or other paid benefits and any other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied with, and is in compliance in all material respects with, with all applicable local, state, state and federal equal employment opportunity laws respecting and with other laws related to employment, employment practicesincluding those related to wages, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in forcehours, worker classification and wages, leave, workers’ compensationclassification, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliationbargaining. The Company has withheld and paid to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.. 23
(d) Since January 1, 2017, the Company (or Insperity) has conducted background checks of the Company’s employees when required by business need or contract, and obtained all required consent forms. The Company’s use of information obtained from such background checks has been and is compliant in all material respects with all applicable laws and background check reports and verifications have been maintained consistent in all material respects with all applicable law, including applicable privacy and data security laws. The Company further complied in all material respects with the Fair Credit Reporting Act and other state or local laws prior to taking any adverse employment action.
(e) To the Company’s Knowledge, no Key Employee Shareholder (excluding Xxxxxx X. Xxxxxxx who is not an employee of the Company) intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as an employee of the Company. The Company does not have a present intention to terminate the employment of any employee. The employment of each employee of the Company is terminable at the will of the Company without modification by an employment agreement, except as otherwise required by applicable LawCompany. Except as required by Law or as set forth in any written agreementlaw, upon termination of the employment of any at-will such employees, no severance or other payments will become due. The Company has no policy, practice, plan, or program of paying severance pay or any form of severance compensation to at-will employees in connection with the termination of employment services.
(fe) None of the Company or, to the Company’s Knowledge, any Equityholder Shareholder has made to any officer, employee, director, consultant director or independent contractorconsultant, as applicable, any representations regarding equity incentives or other rights to or in respect of any Equity Interests in the Company.
. (g) Each former executive officer or vice president employee of the Company whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.
(hf) Schedule 3.15(h2.15(f) sets forth each employee benefit plan maintained, established or sponsored by the Company, or which the Company Employee Plan. No Group Company has ever sponsored participates in or maintained or had any Liabilities relating to any plan contributes to, which is subject to Title IV the Employee Retirement Income Security Act of ERISA or any other defined benefit pension plan 1974, as amended (whether or not subject to “ERISA”). No Group Company has There is no Person or Entity (including any commitment or intent to amend any existing Company Employee Plan or create any new arrangement subsidiary of the Company) that would be considered a single employer with the Company Employee Plan, except as required by applicable Law. Except for the portion of any plan sponsored by Insperity which does not cover employees or a subsidiary of the Company (or their dependents), each within the meaning of Section 414 of the Code. The Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with its terms, without the consent of plan participants has made all required contributions and without has no liability to any Group Company other than ordinary administrative expenses and the payment of any accrued benefits.
(i) With respect to each Company Employee Plan, the Company has made available to the Acquiror true, complete and correct copies of (to the extent applicable): (i) all documents pursuant to which the Company Employee Plan is maintained, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts or service provider agreements)such employee benefit plan, other than such documents liability for a health plan sponsored by Insperity that have not been provided to the Company; (iicontinuation coverage described in Part 6 of Title I(B) the three most recent annual reports (Form 5500 series); andof ERISA, except and has complied with all applicable laws for any such plan sponsored by Insperity (iii) the most recent determination, opinion, or advisory letter received from the IRS, except for any such plan sponsored by Insperity.
(j) Each Company Employee Plan, and to the Company’s Knowledge, each Company Employee Plan sponsored by Insperity, has been operated and administered in all material respects in compliance with its terms and the applicable provisions of ERISA, the Code, and all other applicable Laws. With respect to each Company Employee Plan, and to the Company’s Knowledge, with respect to each Company Employee Plan sponsored by Insperity, all required payments, premiums, contributions, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is a prototype or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status of such Company Employee Plan or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the employee benefit plan.
(l) There are no pending or, to the Company’s Knowledge, threatened actions, audits, suits, investigations or claims with respect to any Company Employee Plan (other than routine claims for benefits), except for the portion of such plan sponsored by Insperity which does not cover employees of the Company (or their dependents). To the Company’s Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Company, or any officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code, except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents).
(m) Neither the execution and delivery of this Agreement nor transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plan, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefit.
Appears in 1 contract
Samples: Stock Purchase Agreement
Employee Matters; ERISA. (a) Except as set forth on Schedule 3.15(a) sets forth a list of all full4.16, the Representing Parties do not have in effect any Plans or any other employment agreements, consulting agreements, deferred compensation, pension or retirement agreements or arrangements, bonus, severance, incentive or profit-time employeessharing plans or arrangements, part-time employeesor labor or collective bargaining agreements, directors, consultants and independent contractors as written or oral. To the Knowledge of the date hereof and sets forth each individual’s title (or, with respect to consultants and independent contractors over the past year, a brief description of the nature of work performed), service dates, visa status and type for employees who are not U.S. citizens and are employed in the United States, status as exempt or non-exempt, and all compensation, including salary, guaranteed bonus, commissions, severance obligations, profit sharing, incentive plan, phantom equity Contract or plan and deferred compensation paid or payable for each employee, director, consultant and independent contractor of the Company and the work location of each such employee, director, consultant and independent contractor.
(b) To the Company’s KnowledgeRepresenting Parties, none of its directors, officers, employees, consultants, independent contractors, agents the officers or representatives is obligated under any Contract or subject to any Order of any court or administrative agency, that would interfere with such individual’s ability to provide services to the Company. Neither the execution or delivery by the Company of the Transaction Agreements, nor the carrying on of the Company’s business by any such individual, nor the conduct of the business as currently conducted and as presently proposed by the Company to be conducted (as indicated on the Product Roadmap), will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract under which any such individual is now obligated.
(c) Other than compensation and benefits due and payable in the ordinary course of business and consistent with past practices, the Company (or Insperity) has paid to its employees, consultants, independent contractors, and other service providers all wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any other paid benefits and any other compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied with, and is in compliance in all material respects with, all applicable local, state, and federal laws respecting employment, employment practices, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in force, worker classification and wages, leave, workers’ compensation, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliation. The Company has withheld and paid to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all amounts required to be withheld from key employees of the Company and is not liable for any arrears of wages, taxes, penalties, Representing Parties presently intends to terminate his or other sums for failure to comply with any of the foregoing.
(d) Since January 1, 2017, the Company (or Insperity) has conducted background checks of the Company’s employees when required by business need or contract, and obtained all required consent formsher employment. The Company’s use of information obtained from such background checks has been and is compliant Representing Parties are in compliance in all material respects with all applicable laws and background check reports regulations relating to labor, employment, fair employment practices, terms and verifications have been maintained consistent in all material respects with all applicable lawconditions of employment, including applicable privacy and data security laws. The Company further complied in all material respects with the Fair Credit Reporting Act wages and other state or local laws prior to taking any adverse employment action.
(e) To the Company’s Knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as an employee of the Company. The Company does not have a present intention to terminate the employment of any employee. The employment of each employee of the Company is terminable at the will of the Company without modification by an employment agreement, except as otherwise required by applicable Lawhours. Except as required by Law or as set forth in any written agreementon Schedule 4.16, upon termination of the employment of any at-will employees, no severance or other payments the Representing Parties will become due. The Company has no policy, practice, plan, or program not be obligated to provide advance notice of paying severance pay or any form of severance compensation to at-will employees in connection with the termination of employment services.
(f) or be liable to any such employees for so-called “severance pay” or retiree health benefits. The Representing Parties are in material compliance with the terms of all Plans and other programs, including, without limitation, those arrangements listed on Schedule 4.16, and each such Plan or other program has been maintained, funded and administered in substantial compliance with all of the requirements and provisions of applicable law including ERISA and the Code and is terminable in the discretion of the applicable Representing Party without liability thereto upon or following such termination. To the Knowledge of the Representing Parties, no “prohibited transaction” as defined in Section 4975 of the Code has occurred with respect to any such Plan or other program. None of the Company oror any of its Subsidiaries or any of their respective ERISA Affiliates or any of their predecessors has ever maintained, sponsored or contributed to the Company’s Knowledge, any Equityholder has made or been obligated to any officer, employee, director, consultant or independent contractor, as applicable, any representations regarding equity incentives or other rights contribute to or in any way, directly or indirectly, has any liability with respect of any Equity Interests in the Company.
(g) Each former executive officer or vice president employee of the Company whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.
(h) Schedule 3.15(h) sets forth each Company Employee Plan. No Group Company has ever sponsored or maintained or had any Liabilities relating to any plan which is subject to Title IV of ERISA, Section 302 of ERISA or any other defined benefit pension plan (whether or not subject to ERISA). No Group Company has any commitment or intent to amend any existing Company Employee Plan or create any new arrangement that would be a Company Employee Plan, except as required by applicable Law. Except for the portion of any plan sponsored by Insperity which does not cover employees Section 412 of the Company (Code or their dependents), each Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with its terms, without the consent of plan participants and without liability been obligated to contribute to any Group Company other than ordinary administrative expenses and the payment of any accrued benefits“Multi-Employer Plan.
(i) ” With respect to each Company Employee Planarrangement listed on Schedule 4.16, all required filings with any Governmental Authority, including all filings required to be made with the Company has made available United States Department of Labor and Internal Revenue Service, have been timely filed. No ERISA Events have occurred or are reasonably expected to occur that individually or in the Acquiror trueaggregate could reasonably be expected to result in a material liability to Company, complete and correct copies any of (its Subsidiaries or any of their respective ERISA Affiliates. Except to the extent applicable): (i) all documents pursuant to which the Company Employee Plan is maintained, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts or service provider agreements), other than such documents for a plan sponsored by Insperity that have not been provided to the Company; (ii) the three most recent annual reports (Form 5500 series); and, except for any such plan sponsored by Insperity (iii) the most recent determination, opinion, or advisory letter received from the IRS, except for any such plan sponsored by Insperity.
(j) Each Company Employee Plan, and to the Company’s Knowledge, each Company Employee Plan sponsored by Insperity, has been operated and administered in all material respects in compliance with its terms and the applicable provisions of ERISA, the Code, and all other applicable Laws. With respect to each Company Employee Plan, and to the Company’s Knowledge, with respect to each Company Employee Plan sponsored by Insperity, all required payments, premiums, contributions, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is a prototype or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status of such Company Employee Plan or result in a requirement to voluntarily correct any qualification defects to maintain the qualified status of the plan.
(l) There are no pending or, to the Company’s Knowledge, threatened actions, audits, suits, investigations or claims with respect to any Company Employee Plan (other than routine claims for benefits), except for the portion of such plan sponsored by Insperity which does not cover employees of the Company (or their dependents). To the Company’s Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Company, or any officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) of ERISA or Section 4975 4980B of the Code, except no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for the portion any retired or former employee of Company, any plan sponsored by Insperity which does not cover employees of the Company (its Subsidiaries or any of their dependents).
(m) Neither the respective ERISA Affiliates. The execution and delivery of this Agreement nor transactions contemplated hereby (either alone and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in conjunction connection with any other eventwhich a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plan, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefitCode.
Appears in 1 contract
Employee Matters; ERISA. (a) Schedule 3.15(a) sets forth a list As of all the date hereof, the Company employs 25 full-time employees, 1 part-time employees, directors, consultants employee and engages 1 consultant or independent contractors as of the date hereof and contractor. Schedule 2.15 sets forth each individual’s title (or, with respect to consultants and independent contractors over the past year, a brief detailed description of the nature of work performed), service dates, visa status and type for employees who are not U.S. citizens and are employed in the United States, status as exempt or non-exempt, and all compensation, including salary, guaranteed bonus, commissions, severance obligations, profit sharing, incentive plan, phantom equity Contract or plan and deferred compensation paid or payable for each employeeofficer, director, employee, consultant and independent contractor of the Company and the work location of each such employeeofficer, director, employee, consultant and independent contractor.
(b) To the Company’s Knowledge, none of its directors, officers, employees, consultants, independent contractors, agents or representatives employees is obligated under any Contract or subject to any Order of any court or administrative agency, that would interfere with such individualemployee’s ability to provide services to promote the interests of the Company or that would conflict with the Company’s business. Neither the execution or delivery by the Company of the Transaction Agreements, nor the carrying on of the Company’s business by any such individualthe employees of the Company, nor the conduct of the Company’s business as currently now conducted and as presently proposed by the Company to be conducted (as indicated on the Product Roadmap)conducted, will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any Contract under which any such individual employee is now or has been obligated.
(c) Other than compensation and benefits due and payable The Company is not delinquent in the ordinary course payments to any of business and consistent with past practices, the Company (or Insperity) has paid to its employees, consultants, or independent contractors, and other service providers all contractors for any wages, salaries, commissions, bonuses, wage premiums, accrued PTO, accrued vacation, any or other paid benefits and any other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied with, and is in compliance in all material respects with, with all applicable local, state, state and federal equal employment opportunity laws respecting and with other laws related to employment, employment practicesincluding those related to wages, labor, terms and conditions of employment, occupational health and safety, layoffs, plant closing or reductions in forcehours, worker classification and wages, leave, workers’ compensationclassification, and collective bargaining as well as laws prohibiting discrimination, harassment, and retaliationbargaining. The Company has withheld and paid to the appropriate Governmental Body or is holding for payment not yet due to such Governmental Body all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.
(d) Since January 1, 2017, the Company (or Insperity) has conducted background checks of the Company’s employees when required by business need or contract, and obtained all required consent forms. The Company’s use of information obtained from such background checks has been and is compliant in all material respects with all applicable laws and background check reports and verifications have been maintained consistent in all material respects with all applicable law, including applicable privacy and data security laws. The Company further complied in all material respects with the Fair Credit Reporting Act and other state or local laws prior to taking any adverse employment action.
(e) To the Company’s Knowledge, no Key Employee Shareholder (excluding Xxxxxx X. Xxxxxxx who is not an employee of the Company) intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as an employee of the Company. The Company does not have a present intention to terminate the employment of any employee. The employment of each employee of the Company is terminable at the will of the Company without modification by an employment agreement, except as otherwise required by applicable LawCompany. Except as required by Law or as set forth in any written agreementlaw, upon termination of the employment of any at-will such employees, no severance or other payments will become due. The Company has no policy, practice, plan, or program of paying severance pay or any form of severance compensation to at-will employees in connection with the termination of employment services.
(fe) None of the Company or, to the Company’s Knowledge, any Equityholder Shareholder has made to any officer, employee, director, consultant director or independent contractorconsultant, as applicable, any representations regarding equity incentives or other rights to or in respect of any Equity Interests in the Company.
(gf) Each former executive officer Schedule 2.15(f) sets forth each employee benefit plan maintained, established or vice president employee sponsored by the Company, or which the Company participates in or contributes to, which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). There is no Person or Entity (including any subsidiary of the Company) that would be considered a single employer with the Company or a subsidiary of the Company whose employment was terminated within the meaning of Section 414 of the Code. The Company has made all required contributions and has no liability to any such employee benefit plan, other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, and has complied with all applicable laws for any such employee benefit plan.
(g) The Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any Contract with any labor union, and no labor union has requested or, to the Knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company has entered into an agreement with pending or to the Knowledge of the Company providing for threatened, nor is the full release Company aware of any claims against the Company or any related party arising out of such employmentlabor organization activity involving its employees.
(h) Schedule 3.15(h) sets forth each Company Employee Plan. No Group Company has ever sponsored or maintained or had any Liabilities relating to any plan subject to Title IV of ERISA or any other defined benefit pension plan (whether or not subject to ERISA). No Group Company has any commitment or intent to amend any existing Company Employee Plan or create any new arrangement that would be a Company Employee Plan, except as required by applicable Law. Except for To the portion of any plan sponsored by Insperity which does not cover employees Knowledge of the Company (Company, none of the employees, officers or their dependents), each Company Employee Plan can be amended, terminated or otherwise discontinued in accordance with its terms, without the consent directors of plan participants and without liability to any Group Company other than ordinary administrative expenses and the payment of any accrued benefits.
(i) With respect to each Company Employee Plan, the Company has made available to the Acquiror true, complete and correct copies of (to the extent applicable): (i) all documents pursuant to which the Company Employee Plan is maintained, funded and administered (including the plan and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts or service provider agreements), other than such documents for a plan sponsored by Insperity that have not been provided to the Company; (ii) , within the three most recent annual reports (Form 5500 series); and, except for any such plan sponsored by Insperity (iii) the most recent determination, opinion, or advisory letter received from the IRS, except for any such plan sponsored by Insperity.
(j) Each Company Employee Plan, and to the Company’s Knowledge, each Company Employee Plan sponsored by Insperitypast six years, has been operated (a) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and administered in all material respects in compliance with its terms and the applicable provisions of ERISAother minor offenses); (c) subject to any Order (not subsequently reversed, the Code, and all other applicable Laws. With respect to each Company Employee Plan, and to the Company’s Knowledge, with respect to each Company Employee Plan sponsored by Insperity, all required payments, premiums, contributionssuspended, or reimbursements for all periods ending prior to or as of the Closing Date have been made within the time prescribed by such Company Employee Plan or applicable Law or have been properly accrued.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(avacated) of the Code is so qualified and is any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a prototype public company; or volume submitter plan that may rely on an opinion or advisory letter received from the IRS. To the Company’s Knowledge, nothing has occurred and no circumstance exists that could adversely affect the qualified status (d) found by a court of such Company Employee Plan or result competent jurisdiction in a requirement civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to voluntarily correct have violated any qualification defects to maintain the qualified status of the plan.
(l) There are no pending orfederal or state securities, to the Company’s Knowledge, threatened actions, audits, suits, investigations or claims with respect to any Company Employee Plan (other than routine claims for benefits), except for the portion of such plan sponsored by Insperity which does not cover employees of the Company (or their dependents). To the Company’s Knowledge, there has been no prohibited transaction with respect to any Company Employee Plan which could subject any Company Employee Plan, any Group Companycommodities, or any officerunfair trade practices law, director which such judgment or employee of any of the foregoing to a material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Codefinding has not been subsequently reversed, except for the portion of any plan sponsored by Insperity which does not cover employees of the Company (or their dependents).
(m) Neither the execution and delivery of this Agreement nor transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee or independent contractor of any Group Company from the Group Company or under any Company Employee Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Employee Plansuspended, or (iii) result in any acceleration of the time of payment, vesting or funding of any payment or benefitvacated.
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