Employees and Labor Matters. (a) To the Knowledge of Sellers and the Acquired Companies, no executive, key employee, or group of employees has any plans to terminate employment with the Acquired Companies. Except as disclosed in Section 4.21(a) of the Disclosure Schedule, to the Knowledge of Sellers and the Acquired Companies, no employee has any claim, or basis for any claim, against the Acquired Companies that would reasonably be expected to result in a material Liability of any Acquired Company. (b) Section 4.21(b) of the Disclosure Schedule contains a list of (i) all full, part-time and hourly employees of the Acquired Companies as of a date not more than ten (10) days prior to the date of this Agreement (the “Employees”), (ii) all consultants and other independent contractors to the Acquired Companies who have rendered services material to the business of the Acquired Companies within the last twelve (12) months, and (iii) the directors, executive officers and any advisory board members of the Acquired Companies, if any, including an organizational chart of each. Section 4.21(b) of the Disclosure Schedule also sets forth for each Employee the following information as of a date not more than ten (10) days prior to the date of this Agreement: (v) title (if manager level or above), (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be due and payable upon termination of such employee), (y) any severance obligation of the Acquired Companies which may result upon consummation of the transactions contemplated by this Agreement, and (z) bonuses paid or accrued with respect to the current fiscal year in the aggregate for all Employees. Except as set forth on Section 4.21(b) of the Disclosure Schedule, and except as provided by Law, the employment of all persons presently employed or retained by each Acquired Company is terminable at will. (c) Since January 1, 2007, the Acquired Companies have not experienced any work stoppage, slow-down, picket, strike, lock-out or other labor disturbance, nor is any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring or, to the Knowledge of Sellers and the Acquired Companies, Threatened. To the Knowledge of Sellers and the Acquired Companies, (i) there are no organizational efforts presently being made or Threatened by or on behalf of any labor union with respect to any Employees, and (ii) since January 1, 2007, no union or other labor organization has attempted to organize any current or former employees of the Acquired Companies. Neither Sellers, the Acquired Companies nor to their Knowledge any of the ERISA Affiliates are or were a party to any collective bargaining agreement. (d) Except as disclosed in Section 4.21(d) of the Disclosure Schedule, there are no claims, controversies, labor disturbances, investigations, Proceedings or complaints pending or, to Knowledge of Sellers and the Acquired Companies, Threatened, by any Governmental Authority, any Employees, any party or parties representing any of such Employees, or any former employer of a current Employee, against the Acquired Companies before any court, arbitrator or other tribunal. There are no unfair labor practice charges, charges of discrimination, wrongful termination or other similar complaints pending against the Acquired Companies involving employees now or previously employed by the Acquired Companies that would have a Material Adverse Effect, nor, to the Knowledge of Sellers and the Acquired Companies, do any facts or circumstances exist that could provide a reasonable basis for the same. (e) There has not been with respect to any Acquired Company (i) a “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar state, local or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or (ii) a “mass layoff” (as defined in the WARN Act, or any similar state, local or foreign Law) affecting any site of employment or facility. None of the employees of any Acquired Company has suffered an “employment loss” (as defined in the WARN Act or any similar state, local or foreign Law) during the ninety-day period prior to the date of this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Primoris Services CORP)
Employees and Labor Matters. (a) To the Knowledge of Sellers and the Acquired Companies, no executive, key employee, or group of employees has any plans to terminate employment with the Acquired Companies. Except as disclosed in Section 4.21(aSchedule 5.20(a) of the Disclosure ScheduleSchedules is a true, ----------------- accurate and complete list containing the name, current position and work location, of each Relevant Employee on the date of this Agreement. Schedule -------- 5.20
(a) will be modified at the Closing to reflect all changes in Schedule ------ -------- 5.20
(a) after the Knowledge date of Sellers this Agreement through the Closing; provided, however, ------- such final Schedule 5.20
(a) shall be agreed upon and initialed by Seller and ---------------- Buyer prior to inclusion in this Agreement, any changes shall be subject to Seller's representation and warranty in Section 5.19 above and Seller's covenant in Section 7.1 below, and such revised schedule shall indicate all changes from the Acquired CompaniesSchedule initially attached to this Agreement. A separate schedule listing the compensation, no employee including incentive plans, for each Relevant Employee has any claim, or basis for any claim, against the Acquired Companies that would reasonably be expected been provided to result in a material Liability of any Acquired CompanyBuyer and is incorporated into this Section 5.20 by reference.
(b) Section 4.21(b) of the Disclosure Schedule contains a list of (i) all full, part-time and hourly employees of the Acquired Companies as of a date not more than ten (10) days prior to the date of this Agreement (the “Employees”), (ii) all consultants and other independent contractors to the Acquired Companies who have rendered services material to the business of the Acquired Companies within the last twelve (12) months, and (iii) the directors, executive officers and any advisory board members of the Acquired Companies, if any, including an organizational chart of each. Section 4.21(b) of the Disclosure Schedule also sets forth for each Employee the following information as of a date not more than ten (10) days prior to the date of this Agreement: (v) title (if manager level or above), (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be due and payable upon termination of such employee), (y) any severance obligation of the Acquired Companies which may result upon consummation of the transactions contemplated by this Agreement, and (z) bonuses paid or accrued with respect to the current fiscal year in the aggregate for all Employees. Except as set forth on Section 4.21(b) of the Disclosure Schedulein Schedule 5.20(b). all Relevant ----------------- Employees are employees-at-will; and, and except as provided by Law, the set forth in Schedule 5.20(b). ---------------- no Relevant Employee is a party to any employment of all persons presently employed agreement or retained by each Acquired Company is terminable at will.similar contractual arrangement;
(c) Since January 1Seller is not a party to any labor contract relating to its Business, 2007and no strike, the Acquired Companies have not experienced any slowdown, picketing, work stoppage, slow-downlabor arbitration or Proceeding in respect of the grievance of any Relevant Employee is pending or threatened, picket, strike, lock-out and no labor organizational activity or other labor disturbancedispute against or affecting the Agronomy or Seedway Division, nor is any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring pending or, to the Knowledge of Sellers and the Acquired CompaniesSeller, Threatened. To the Knowledge of Sellers and the Acquired Companies, (i) there are no organizational efforts presently being made or Threatened by or on behalf of any labor union with respect to any Employees, and (ii) since January 1, 2007, no union or other labor organization has attempted to organize any current or former employees of the Acquired Companies. Neither Sellers, the Acquired Companies nor to their Knowledge any of the ERISA Affiliates are or were a party to any collective bargaining agreement.threatened;
(d) Except as disclosed in Section 4.21(d) All salaries, wages and other compensation (including bonuses, commissions and overtime), sick leave, severance pay and vacation benefits for all Relevant Employees for all periods through the date of the Disclosure Schedule, there are no claims, controversies, labor disturbances, investigations, Proceedings or complaints pending or, to Knowledge of Sellers this Agreement and the Acquired Companies, Threatened, by any Governmental Authority, any Employees, any party or parties representing any of such Employees, or any former employer of a current Employee, against the Acquired Companies before any court, arbitrator or other tribunal. There are no unfair labor practice charges, charges of discrimination, wrongful termination or other similar complaints pending against the Acquired Companies involving employees now or previously employed by the Acquired Companies that would have a Material Adverse Effect, nor, up to the Knowledge Closing Date will be paid in the ordinary course of Sellers business on or after the date of this Agreement and the Acquired CompaniesClosing Date, do any facts or circumstances exist that could provide a reasonable basis for the same.respectively;
(e) There Seller has not been maintained and continues to maintain, true, accurate and complete payroll, personnel and time records for purposes of compliance with all federal and state minimum wage and overtime laws and right to work laws, including, without limitation, adequate documentation of the applicability of exemptions under such laws;
(f) Seller is in substantial compliance with all Legal Requirements relating to all Relevant Employees with respect to any Acquired Company to: (i) a “plant closing” (as defined in the Worker Adjustment terms and Retraining Notification Act (the “WARN Act”) or any similar stateconditions of employment, local or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or (ii) a “mass layoff” wages and hours and (iii) any Legal Requirement or governmental program designed to provide safe and healthful working conditions, and to reduce occupational safety and health hazards; and
(g) Except as defined set forth in Schedule 5.20(g). there are no ----------------- pending or threatened, and during the WARN last five (5) years have not been any, formal employment-related Proceedings against Seller relating to any Relevant Employees or any Employee Benefit Plans (other than routine claims for benefits), including, but not limited to, violations of the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, the Rehabilitation Act of 1973, the Family and Medical Leave Act of 1993, the Civil Rights Acts of 1866, 1964, 1971 and 1991, the Family and medical Leave Act, the Fair Labor Standards Act, ERISA, the Code, the Occupational Safety and Health Act, and any other federal, state or any similar state, local or foreign Law) affecting any site of employment or facility. None of the employees of any Acquired Company has suffered an “employment loss” (as defined in the WARN Act or any similar state, local or foreign Law) during the ninetyemployment-day period prior to the date of this Agreementrelated Legal Requirements.
Appears in 1 contract
Samples: Asset Purchase Agreement (Agway Inc)
Employees and Labor Matters. (a) To Schedule 3.16(a) sets forth, with respect to each employee of the Knowledge Company (including any employee of Sellers the Company who is on a leave of absence or on layoff status subject to recall) as of March 15, 2005 (i) the name of such employee and the Acquired Companiesdate as of which such employee was originally hired by the Company, no executiveand whether the employee is on an active or inactive status; (ii) such employee's title; (iii) such employee's annualized compensation as of the date of this Agreement, key employeeincluding base salary, vacation and/or paid time off accrual amounts, bonus and/or commission potential, equity vesting schedule, severance pay potential (including the maximum severance payable to such employee and the circumstances under which such severance payment is triggered), and any other compensation forms; (iv) each current benefit plan in which such employee participates or group of employees has is eligible to participate; and (v) any plans to terminate employment governmental authorization that is held by such employee and that is used in connection with the Acquired CompaniesCompany's business. Except as disclosed in Section 4.21(a) Schedule 3.16(a), the employment of each of the Disclosure Schedule, to employees of the Knowledge of Sellers and Company is terminable by the Acquired Companies, no employee has any claim, or basis for any claim, against the Acquired Companies that would reasonably be expected to result in a material Liability of any Acquired CompanyCompany at will.
(b) Section 4.21(bSchedule 3.16(b) lists all Persons who are currently performing services for the Company who are classified as "consultants" or "independent contractors," the compensation of each such Person and whether the Company is party to an agreement with such Person (whether or not in writing). Any such agreements are listed on Schedule 3.12(a) and have been delivered (or, in the case of agreements that are not in writing, a summary thereof has been delivered) to Buyer. All such Persons have executed the Company's form Proprietary Information and Inventions Agreement . All Persons engaged by the Company as independent contractors, rather than employees, have been properly classified as such and have been engaged in accordance with all applicable foreign, federal, state and/or local laws.
(c) The Company is not and have never been a party to or bound by any union contract, collective bargaining agreement or similar contract. There has never been any lockout, strike, slowdown, work stoppage, labor dispute or, union organizing activity, or any similar activity or dispute, affecting the Company or any of its employees.
(d) Schedule 3.16(d) lists all current employee manuals and handbooks, employment policy statements, employment agreements, and other materials relating to the employment of the Disclosure current employees of the Company. Sellers have delivered to Buyer complete copies of all such documents.
(e) Except as disclosed in Schedule contains a list of 3.16(e), except for clerical, administrative or hourly employees (i) all full, part-time and hourly none of the employees of the Acquired Companies as of a date not more than ten (10) days prior Company has notified or otherwise indicated to the date Company that he or she intends to terminate his or her employment with the Company, or not to accept employment with Buyer; (ii) the Company does not have a present intention to terminate the employment of this any employee; (iii) to the Company's Knowledge, no employee of the Company has since January 1, 2005 received an offer of an employment from any other Person; (iv) all employees of the Company have executed the Company's form Proprietary Information and Inventions Agreement (v) to the “Employees”Company's Knowledge no employee of the Company is a party to or is bound by any employment contract, patent disclosure agreement, noncompetition agreement or other restrictive covenant or other contract with any third party that would be likely to affect in any way (A) the performance by such employee of any of his or her duties or responsibilities as an employee, or (B) the business or operations of the Company; (vi) to the Knowledge of the Company, no employee of the Company is in violation of any term of any employment contract, patent disclosure agreement, noncompetition agreement, or any other restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company; and (vii) the Company is not and never has been engaged in any dispute or litigation with an employee or former employee regarding Intellectual Property matters.
(f) Except as disclosed in Schedule 3.16(f), (i) the Company does not have an established severance pay practice or policy; (ii) all consultants and other independent contractors to the Acquired Companies who have rendered services material to the business no employee of the Acquired Companies within Company is entitled to any severance pay, bonus compensation, acceleration of payment or vesting of any equity interest, or other payment from the last twelve Company or Buyer (12) monthsother than accrued salary, and (iii) vacation, or other paid time off in accordance with the directors, executive officers and any advisory board members policies of the Acquired Companies, if any, including an organizational chart Company) as a result of each. Section 4.21(b) of the Disclosure Schedule also sets forth for each Employee the following information as of a date not more than ten (10) days prior to the date of this Agreement: (v) title (if manager level or above), (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be due and payable upon termination of such employee), (y) any severance obligation of the Acquired Companies which may result upon consummation of in connection with the transactions contemplated by this Agreement, and (z) bonuses paid Agreement or accrued with respect any of the Ancillary Agreements or as a result of any termination by the Company on or after the Closing of any Person employed by the Company on or prior to the current fiscal year in Closing Date. Schedule 3.16(f) identifies each employee entitled to any non-discretionary bonus or severance from the aggregate for all Employees. Except as set forth on Section 4.21(b) Company or any successor of the Disclosure Schedule, and except as provided by Law, the employment of all persons presently employed or retained by each Acquired Company is terminable at willCompany. .
(cg) Since January 1The Company is and has at all times been in compliance with all currently applicable laws respecting employment and employment practices, 2007terms and conditions of employment and wages and hours, the Acquired Companies except for violations that have not experienced had and would not reasonably be expected to have an Adverse Effect on the Company. The Company is not engaged, and to the Company's Knowledge have never engaged, in any work stoppageunfair labor practice of any nature. The Company has not failed to pay any of its employees, slow-downconsultants or contractors for any wages (including overtime), picketsalaries, strikecommissions, lock-out bonuses, benefits or other labor disturbance, nor is direct compensation for any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring or, services performed by them to the Knowledge of Sellers and the Acquired Companies, Threatened. To the Knowledge of Sellers and the Acquired Companies, (i) there are no organizational efforts presently being made date hereof or Threatened by or on behalf of any labor union with respect amounts required to any Employees, and (ii) since January 1, 2007, no union or other labor organization has attempted be reimbursed to organize any current or former employees of the Acquired Companies. Neither Sellers, the Acquired Companies nor to their Knowledge any of the ERISA Affiliates are or were a party to any collective bargaining agreementsuch individuals.
(dh) Except as disclosed in Section 4.21(d) The Company, and each employee of the Disclosure ScheduleCompany, there are is in compliance in all material respects with all applicable visa and work permit requirements, and no claims, controversies, labor disturbances, investigations, Proceedings visa or complaints pending or, to Knowledge of Sellers and the Acquired Companies, Threatened, work permit held by any Governmental Authority, any Employees, any party or parties representing any of such Employees, or any former employer of a current Employee, against the Acquired Companies before any court, arbitrator or other tribunal. There are no unfair labor practice charges, charges of discrimination, wrongful termination or other similar complaints pending against the Acquired Companies involving employees now or previously employed by the Acquired Companies that would have a Material Adverse Effect, nor, to the Knowledge of Sellers and the Acquired Companies, do any facts or circumstances exist that could provide a reasonable basis for the same.
(e) There has not been with respect to any Acquired Company (i) a “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar state, local or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or (ii) a “mass layoff” (as defined in the WARN Act, or any similar state, local or foreign Law) affecting any site of employment or facility. None an employee of the employees of any Acquired Company has suffered an “employment loss” (as defined in the WARN Act or any similar state, local or foreign Law) will expire during the ninety-day six month period prior to following the date of this Agreement.
Appears in 1 contract
Employees and Labor Matters. (a) To Schedule 3.17(a) sets forth, with respect to each employee of the Knowledge Company (including any employee of Sellers the Company who is on a leave of absence or on layoff status subject to recall) (i) the name of such employee and the Acquired Companiesdate as of which such employee was originally hired by the Company, no executive, key and whether the employee is on an active or inactive status; (ii) such employee, or group of employees has any plans to terminate employment with the Acquired Companies. Except ’s title; (iii) such employee’s annualized compensation as disclosed in Section 4.21(a) of the Disclosure Scheduledate of this Agreement, including base salary, vacation and/or paid time off accrual amounts, currently estimated 2005 bonus and/or commission potential (which may be adjusted between the date hereof and the Closing Date), equity vesting schedule, severance pay commitment or potential, and any other compensation forms; (iv) each current benefit plan in which such employee participates or is eligible to participate; and (v) any governmental authorization that is, to the Knowledge Company’s Knowledge, held by such employee and that is used in connection with the Company’s business. Unless specifically noted to the contrary in Schedule 3.17(a), the employment of Sellers and each of the Acquired Companies, no employee has any claim, or basis for any claim, against employees of the Acquired Companies that would reasonably be expected to result in a material Liability of any Acquired CompanyCompany is terminable by the Company at will.
(b) Section 4.21(bSchedule 3.17(b) lists all Persons who are currently performing services for the Company who are classified as “consultants” or “independent contractors,” the compensation of each such Person and whether the Disclosure Company is party to an agreement with such Person (whether or not in writing). Any such agreements are listed on Schedule contains a list of 3.13 and have been delivered (i) all fullor, part-time and hourly employees of the Acquired Companies as of a date not more than ten (10) days prior to the date of this Agreement (the “Employees”), (ii) all consultants and other independent contractors to the Acquired Companies who have rendered services material to the business of the Acquired Companies within the last twelve (12) months, and (iii) the directors, executive officers and any advisory board members of the Acquired Companies, if any, including an organizational chart of each. Section 4.21(b) of the Disclosure Schedule also sets forth for each Employee the following information as of a date not more than ten (10) days prior to the date of this Agreement: (v) title (if manager level or above), (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be due and payable upon termination of such employee), (y) any severance obligation of the Acquired Companies which may result upon consummation of the transactions contemplated by this Agreement, and (z) bonuses paid or accrued with respect to the current fiscal year in the aggregate for all Employeescase of material agreements that are not in writing, a summary thereof has been delivered) to Buyer. Except as set forth on Section 4.21(b) of Schedule 3.17(b), all Persons engaged by the Disclosure ScheduleCompany as independent contractors, rather than employees, have been properly classified as such and except as provided by Lawhave been engaged in accordance with all applicable federal, the employment of state and/or local laws and/or all persons presently employed or retained by each Acquired Company is terminable at willapplicable material foreign laws.
(c) Since January 1The Company is not and has never been a party to or bound by any union contract, 2007collective bargaining agreement or similar contract. There has never been any lockout, the Acquired Companies have not experienced any strike, slowdown, work stoppage, slow-downlabor dispute or union organizing activity, picketor any similar activity or dispute, strikeaffecting the Company or any of its employees.
(d) Schedule 3.17(d) lists all current employee manuals and handbooks, lock-out employment policy statements, employment agreements, and other material written communications relating to the employment of the current employees of the Company. The Seller has delivered to Buyer complete copies of all such documents.
(e) Except as disclosed in Schedule 3.17(e), (i) none of the employees of the Company has notified the Company that he or other labor disturbanceshe intends to terminate his or her employment with the Company, or not to accept employment with Buyer nor is any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring or, to the Knowledge of Sellers the Company does any employee intend to terminate his or her employment with Company, or to not accept employment with Buyer; (ii) the Company does not have a current intention to terminate the employment of any employee; (iii) to the Company’s Knowledge, no employee of the Company has since the Balance Sheet Date received an offer of an employment from any other Person; (iv) all employees of the Company have executed the Company’s form Confidentiality and Non-Solicitation Agreement (as defined below); (v) to the Acquired CompaniesCompany’s Knowledge, Threatenedno employee of the Company is a party to or is bound by any employment contract, patent disclosure agreement, noncompetition agreement or other restrictive covenant or other contract with any third party that would be likely to affect in any way (A) the performance by such employee of any of his or her duties or responsibilities as a employee, or (B) the business or operations of the Company; (i) to the Knowledge of the Company, no employee of the Company is in violation of any term of any employment contract, patent disclosure agreement, noncompetition agreement, or any other restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company; and (ii) the Company is not engaged in any dispute or litigation with an employee or former employee regarding Intellectual Property matters.
(f) Except as disclosed in Schedule 3.17(f), (i) the Company does not have an established severance pay practice or policy; (ii) no employee of the Company is entitled to any severance pay, bonus compensation, acceleration of payment or vesting of any equity interest, or other payment from the Company or Buyer (other than accrued salary, vacation, or other paid time off in accordance with the policies of the Company) as a result of or in connection with the transactions contemplated by this Agreement or any of the Ancillary Agreements or as a result of any termination by the Company on or after the Closing of any Person employed by the Company on or prior to the Closing Date.
(g) The Company is in compliance with all currently applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours. To the Knowledge of Sellers the Company, the Company is not engaged and the Acquired Companies, (i) there are no organizational efforts presently being made or Threatened by or on behalf has never engaged in any unfair labor practice of any labor union with respect to any Employees, and (ii) since January 1, 2007, no union or other labor organization has attempted to organize any current or former nature. The employees of the Acquired CompaniesCompany have been, and currently are, properly classified under the Fair Labor Standards Act of 1938, as amended, and under any applicable state law. Neither Sellers, the Acquired Companies nor The Company has not failed to their Knowledge pay any of its employees, consultants or contractors for any wages (including overtime), salaries, commissions, bonuses, benefits or other direct compensation for any services performed by them to the ERISA Affiliates are date hereof or were a party amounts required to any collective bargaining agreementbe reimbursed to such individuals.
(dh) Except as disclosed in Section 4.21(d) The Company and each employee of the Disclosure ScheduleCompany, there are is in compliance in all material respects with all applicable visa and work permit requirements, and no claims, controversies, labor disturbances, investigations, Proceedings visa or complaints pending or, to Knowledge of Sellers and the Acquired Companies, Threatened, work permit held by any Governmental Authority, any Employees, any party or parties representing any of such Employees, or any former employer of a current Employee, against the Acquired Companies before any court, arbitrator or other tribunal. There are no unfair labor practice charges, charges of discrimination, wrongful termination or other similar complaints pending against the Acquired Companies involving employees now or previously employed by the Acquired Companies that would have a Material Adverse Effect, nor, to the Knowledge of Sellers and the Acquired Companies, do any facts or circumstances exist that could provide a reasonable basis for the same.
(e) There has not been with respect to any Acquired Company (i) a “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar state, local or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or (ii) a “mass layoff” (as defined in the WARN Act, or any similar state, local or foreign Law) affecting any site of employment or facility. None an employee of the employees of any Acquired Company has suffered an “employment loss” (as defined in the WARN Act or any similar state, local or foreign Law) will expire during the ninety-day six month period prior to following the date of this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Digitas Inc)
Employees and Labor Matters. (a) To the Knowledge of Sellers and the Acquired Companies, no executive, key employee, or group of employees has any plans to terminate employment with the Acquired Companies. Except as disclosed in Section 4.21(aSchedule 3.21(a) of the Seller Disclosure Schedule, to the Knowledge Letter sets forth a complete and accurate list of Sellers and the Acquired Companies, no employee has any claim, or basis for any claim, against the Acquired Companies that would reasonably be expected to result in a material Liability of any Acquired Company.
(b) Section 4.21(b) all employees of the Disclosure Schedule contains a list Ameri Companies as of the Closing Date showing for each as of that date (i) all fullthe employee’s name, part-time employer, job title or description, location, and current base salary or hourly employees of the Acquired Companies as of a date not more than ten (10) days prior to the date of this Agreement (the “Employees”)pay rate, (ii) all consultants any bonus, commission or other remuneration other than salary paid during the calendar year ending December 31, 2019 and other independent contractors during the calendar year 2020 prior to the Acquired Companies who have rendered services material to the business of the Acquired Companies within the last twelve (12) months, Closing Date and (iii) the directorsany bonus, executive officers and any advisory board members of the Acquired Companies, if any, including an organizational chart of each. Section 4.21(b) of the Disclosure Schedule also sets forth for each Employee the following information as of a date not more commission or other remuneration other than ten (10) days prior to the date of this Agreement: (v) title (if manager level or above), (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be salary due and payable upon termination of such employee)owing to each employee for the calendar year ending December 31, (y) any severance obligation of the Acquired Companies which may result upon consummation of the transactions contemplated by this Agreement, and (z) bonuses paid or accrued with respect to the current fiscal year in the aggregate for all Employees2020. Except as set forth on Section 4.21(bSchedule 3.21(a) of the Seller Disclosure ScheduleLetter, no employee is a party to a written employment agreement or contract with an Ameri Company and each is employed “at will”. Each Ameri Company has paid in full to all employees or properly accrued in accordance with GAAP all wages, salaries, commission, bonuses and other compensation due, in all material respects, including overtime compensation, and except as provided there are no severance payments which are or could become payable by Law, an Ameri Company to any employees under the employment terms of all persons presently employed or retained by each Acquired Company is terminable at will.
(c) Since January 1, 2007, the Acquired Companies have not experienced any work stoppage, slow-down, picket, strike, lock-out or other labor disturbance, nor is any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring written or, to the Knowledge of Sellers Seller, oral agreement, or commitment or any Law, custom, trade or practice. Each such employee has entered into the applicable Ameri Company’s standard form of employee non-disclosure, inventions and restrictive covenants agreement with the Acquired Companiesemploying Ameri Company, Threatenedtrue and correct copies of which have been provided to Buyer.
(b) Schedule 3.21(b) of the Seller Disclosure Letter contains a list of all independent contractors (including consultants) currently engaged by an Ameri Company, along with the position, date of retention and rate of remuneration for each such Person. To All of such independent contractors are a party to a written agreement or contract with the engaging Ameri Company, copies of which have been provided to the Buyer.
(c) No Ameri Company is or has been a party to any collective bargaining agreement or other Contract with any group of employees or any labor organization or other Representative of any of employees of any Ameri Company, and to the Knowledge of Sellers Seller, there are and have been no activities or proceedings of any labor union or other party to organize or represent any employees of any Ameri Company. Except as set forth on Schedule 3.21(c) of the Acquired Companies, Seller Disclosure Letter or as would not be material to an Ameri Company: (i) each Ameri Company is and has been in compliance with all employment Contracts and all applicable Laws and Orders respecting employment and employment practices, terms and conditions of employment and wages and hours, including any Laws respecting employment discrimination and occupational safety and health requirements, and is not and has not been engaged in any unfair labor practice; (ii) there is no labor strike, dispute, slowdown or stoppage actually pending or, to the Knowledge of Seller, threatened against or directly affecting any Ameri Company; (iii) no Ameri Company has experienced any work stoppage or other labor difficulty; (iv) no Ameri Company is delinquent in payments to any of their respective employees for any wages, salaries, commissions, bonuses or other direct compensation for any services performed by them or amounts required to be reimbursed to such employees; (v) there are no organizational efforts presently being made pending or, to the Knowledge of Seller, threatened unfair or Threatened discriminatory employment practice charges pending before any Governmental Authority; and (vi) there are no wrongful discharge claims nor any other type of Actions brought by or on behalf of any labor union with respect to any Employees, and (ii) since January 1, 2007, no union past or other labor organization has attempted to organize any current or former present employees of the Acquired Companies. Neither Sellers, the Acquired Companies nor to their Knowledge any of the ERISA Affiliates are or were a party to any collective bargaining agreement.
(d) Except as disclosed in Section 4.21(d) of the Disclosure Schedule, there are no claims, controversies, labor disturbances, investigations, Proceedings or complaints Ameri Company pending or, to Knowledge of Sellers and the Acquired Companies, Threatened, by any Governmental Authority, any Employees, any party or parties representing any of such Employees, or any former employer of a current Employee, against the Acquired Companies before any court, arbitrator or other tribunal. There are no unfair labor practice charges, charges of discrimination, wrongful termination or other similar complaints pending against the Acquired Companies involving employees now or previously employed by the Acquired Companies that would have a Material Adverse Effect, nor, to the Knowledge of Sellers Seller, threatened against any Ameri Company, arising out of any employees’ employment with an Ameri Company. Each Ameri Company has complied with all applicable Laws and Orders relating to the Acquired Companiespayment and withholding of Taxes and statutory deductions and has timely withheld from employee wages and paid over to the proper Governmental Authorities all amounts required to be so withheld and paid over for all periods under all such Laws and Orders. No Ameri Company has incurred any Liability under any federal, do any facts provincial, state, local or circumstances exist that could provide a reasonable basis for the same.
(e) foreign plant closing and severance laws or regulations. There has not been with respect to any Acquired Company (i) a no “mass layoff” or “plant closing” (as defined in by the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar state, local applicable law with respect to the current or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or (ii) a “mass layoff” (as defined in the WARN Act, or any similar state, local or foreign Law) affecting any site of employment or facility. None former employees of the employees of any Acquired Company has suffered an “employment loss” (as defined in the WARN Act or any similar state, local or foreign Law) during the ninety-day period prior to the date of this AgreementAmeri Companies.
Appears in 1 contract
Employees and Labor Matters. (a) To Section 3.17(a) of the Knowledge Mentorix Disclosure Schedule sets forth, with respect to each employee of Sellers Mentorix (for purposes of this Agreement, “employee of Mentorix” and “employees of Mentorix” shall also mean and include any individual co-employed by Mentorix with Administaff, Inc. (“Administaff”) as co-employer) (including any employee of Mentorix who is on a leave of absence or on layoff status subject to recall) (i) the name of such employee and the Acquired Companiesdate as of which such employee was originally hired by Mentorix, no executiveand whether the employee is on an active or inactive status; (ii) such employee’s title; (iii) such employee’s annualized compensation as of the date of this Agreement, key including base salary, vacation and/or paid time off accrual amounts, bonus and/or commission potential, equity vesting schedule, severance pay potential, and any other forms of compensation and which shall in aggregate detail the all inclusive total cost to Mentorix for each employee, ; (iv) each current benefit plan in which such employee participates or group of employees has is eligible to participate (whether sponsored by Mentorix or Administaff); (v) whether Mentorix is a party to an employment agreement with such employee (whether or not in writing ); and (vi) any plans to terminate employment governmental authorization that is held by such employee and that is used in connection with the Acquired CompaniesMentorix’s business. Except as disclosed in Section 4.21(a3.17(a) of the Mentorix Disclosure Schedule, to the Knowledge employment of Sellers and each of the Acquired Companies, no employee has any claim, or basis for any claim, against the Acquired Companies that would reasonably be expected to result in a material Liability employees of any Acquired CompanyMentorix is terminable by Mentorix at will.
(b) Section 4.21(b3.17(b) of the Mentorix Disclosure Schedule contains a list lists all Persons who are currently performing services for Mentorix who are classified as “consultants” or “independent contractors,” the compensation of each such Person and whether Mentorix is party to an agreement with such Person (i) all full, part-time and hourly employees of the Acquired Companies as of a date whether or not more than ten (10) days prior to the date of this Agreement (the “Employees”in writing), (ii) all consultants and other independent contractors to the Acquired Companies who have rendered services material to the business of the Acquired Companies within the last twelve (12) months, and (iii) the directors, executive officers and any advisory board members of the Acquired Companies, if any, including an organizational chart of each. Any such agreements are listed on Section 4.21(b3.17(b) of the Mentorix Disclosure Schedule also sets forth for each Employee the following information as of a date not more than ten and have been delivered (10) days prior to the date of this Agreement: (v) title (if manager level or above)or, (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be due and payable upon termination of such employee), (y) any severance obligation of the Acquired Companies which may result upon consummation of the transactions contemplated by this Agreement, and (z) bonuses paid or accrued with respect to the current fiscal year in the aggregate case of agreements that are not in writing, a summary thereof has been delivered) to Parent. All Persons engaged by Mentorix as independent contractors, rather than employees, have been properly classified as such and have been engaged in accordance with all applicable foreign, federal, state and/or local laws except for all Employees. Except as set forth such violations which, individually or in the aggregate, would not have a material adverse effect on Section 4.21(b) the Business Condition of the Disclosure Schedule, and except as provided by Law, the employment of all persons presently employed or retained by each Acquired Company is terminable at willMentorix.
(c) Since January 1Mentorix is not and has never been a party to or bound by any union contract, 2007collective bargaining agreement or similar contract. There has never been any lockout, the Acquired Companies have not experienced any strike, slowdown, work stoppage, slow-downlabor dispute or union organizing activity, picketor any similar activity or dispute, strikeaffecting Mentorix or any of their employees. None of the employees of Mentorix are “workmen” as defined in Section 2(s) of the Industrial Disputes Act, lock-out 1947, of India and no notice or other labor disturbance, nor consultation with any trade union in India is required as to any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring or, to employee of Mentorix in India as a result of the Knowledge of Sellers Merger and the Acquired Companies, Threatened. To the Knowledge of Sellers and the Acquired Companies, (i) there are no organizational efforts presently being made or Threatened by or on behalf of any labor union with respect to any Employees, and (ii) since January 1, 2007, no union or other labor organization has attempted to organize any current or former employees of the Acquired Companies. Neither Sellers, the Acquired Companies nor to their Knowledge any of the ERISA Affiliates are or were a party to any collective bargaining agreementtransactions contemplated hereby.
(d) Section 3.17(d) of the Mentorix Disclosure Schedule lists all current employee manuals and handbooks, employment policy statements, employment agreements disclosed in Section 3.17(a)(v) above, and other materials relating to the employment of the current employees of Mentorix. Mentorix has delivered to Parent complete copies of all such documents.
(e) Except as disclosed in Section 4.21(d3.17(e) of the Mentorix Disclosure Schedule, there are (i) none of the employees of Mentorix has notified or otherwise indicated to Mentorix that he or she intends to terminate his or her employment with Mentorix, or not to accept employment with Parent; (ii) Mentorix do not have a present intention to terminate the employment of any employee; (iii) to knowledge of Mentorix, no claimsemployee of Mentorix has since June 1, controversies, labor disturbances, investigations, Proceedings 2003 received an offer of an employment from any other Person; (iv) all employees of Mentorix have executed Mentorix’s form Proprietary Information Agreement or complaints pending or, Nondisclosure Agreement; (v) no employee of Mentorix is a party to Knowledge of Sellers and the Acquired Companies, Threatened, or is bound by any Governmental Authorityemployment contract or agreement, patent disclosure agreement, noncompetition agreement or other restrictive covenant or other contract with any Employees, third party that would be likely to affect in any party or parties representing way (A) the performance by such employee of any of such Employeeshis or her duties or responsibilities as a employee, or (B) the business or operations of Mentorix; (vi) to the knowledge of Mentorix, no employee of Mentorix is in violation of any term of any employment contract or agreement, patent disclosure agreement, noncompetition agreement, or any other restrictive covenant to a former employer relating to the right of a current Employee, against the Acquired Companies before any court, arbitrator or other tribunal. There are no unfair labor practice charges, charges of discrimination, wrongful termination or other similar complaints pending against the Acquired Companies involving employees now or previously such employee to be employed by the Acquired Companies that Mentorix; (vii) Mentorix is not and never has been engaged in any dispute or litigation with an employee or former employee regarding Mentorix Intellectual Property matters; (viii) neither Mentorix or Parent would have a Material Adverse Effect, nor, be subject to the Knowledge of Sellers and the Acquired Companies, do any facts cost or circumstances exist that could provide a reasonable basis for the same.
(e) There has not been liability with respect to any Acquired Company employee whose employment with Administaff is terminated and the employee is hired directly by Mentorix, the Surviving Corporation or Parent and (ix) Mentorix may terminate its co- employment arrangement and related contracts with Administaff at any time with cost or liability (other than costs related to prior services).
(f) Except as disclosed in Section 3.17(f) of the Mentorix Disclosure Schedule, (i) a “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) Mentorix does not have an established severance pay practice or any similar state, local or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or policy; (ii) no employee of Mentorix is entitled to any severance pay, bonus compensation, acceleration of payment or vesting of any equity interest, or other payment from Mentorix, Administaff or Parent (other than accrued salary, vacation, or other paid time off in accordance with the policies of Mentorix and/or Administaff) as a “mass layoff” result of or in connection with the transactions contemplated by this Agreement or any of the other agreements entered into in connection with this Agreement and the Merger or as a result of any termination by Mentorix and/or Administaff on, or by Parent or the Surviving Corporation after, the Closing of any Person employed by Mentorix on or prior to the Closing Date.
(as defined g) Mentorix and Administaff (with respect to employees co-employed with Mentorix) is in compliance with all currently applicable laws (whether U.S. or foreign) respecting employment and employment practices, terms and conditions of employment and wages and hours except for such violations which, individually or in the WARN Actaggregate, or would not have a material adverse effect on the Business Condition of Mentorix. Mentorix is not engaged, and to knowledge of Mentorix has never engaged, in any similar stateunfair labor practice of any nature. The employees of Mentorix have been, local and currently are, properly classified under the Fair Labor Standards Act of 1938, as amended, and under any applicable state or foreign Lawlaw. Neither Mentorix nor Administaff (with respect to employees co-employed with Mentorix) affecting has failed to pay any site of employment its employees, consultants or facility. None contractors for any wages (including overtime), salaries, commissions, bonuses, benefits or other direct compensation for any services performed by them to the date hereof or amounts required to be reimbursed to such individuals.
(h) Except as disclosed in Section 3.17(h) of the employees Mentorix Disclosure Schedule, Mentorix, and each employee of any Acquired Company has suffered Mentorix, is in compliance with all applicable visa and work permit requirements, and no visa or work permit held by an “employment loss” (as defined in the WARN Act or any similar state, local or foreign Law) employee of Mentorix is scheduled expire during the ninetysix-day month period prior to following the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lionbridge Technologies Inc /De/)
Employees and Labor Matters. (a) To the Knowledge of Sellers and the Acquired Companies, no executive, key employee, or group of employees has any plans to terminate employment with the Acquired Companies. Except as disclosed in Section 4.21(a5.16(a) of the Disclosure ScheduleSchedule sets forth, as of December 16, 2022, an accurate and complete list of the following: with respect to the Knowledge each current employee and individual independent contractor of Sellers and the Acquired Companies, no employee has any claim, or basis for any claim, against the Acquired Companies that would reasonably be expected (including any employee who is on a leave of absence or on layoff status): (i) the name, title or classification, and work location, (ii) annualized base compensation or fee, as applicable, (iii) the aggregate dollar amounts of wages, salary, commissions and bonuses received by such employee from the Acquired Companies with respect to result services performed in calendar year 2021, (iv) hire or engagement date, (v) whether the employee is receiving worker compensation or disability payments or who is on leave or layoff status (vi) full-time or part-time status; (vii) overtime exemption classification under the Fair Labor Standards Act or similar applicable state or local Applicable Law, (viii) 2022 target incentive compensation, and (ix) a material Liability description of any extraordinary fringe benefits provided to each such individual as of the date hereof. All compensation, including wages, commissions and bonuses, payable to all employees or former employees, or current or former independent contractors or consultants of the Acquired CompanyCompanies for services performed on or prior to the date hereof have been paid in full as required by applicable Law (or if not yet payable, accrued in full in accordance with applicable Law) and there are no outstanding agreements, understandings, promises or commitments of the Acquired Companies with respect to any additional compensation, commissions or bonuses.
(b) Section 4.21(b5.16(b) of the Disclosure Schedule contains a list accurately identifies each former employee of the Acquired Companies who formerly rendered services to the Acquired Companies who is receiving or is scheduled to receive (ior whose spouse or other dependent is receiving or is scheduled to receive) all fullany benefits from the Acquired Companies relating to such former employee’s employment with the Acquired Companies or services rendered to the Acquired Companies, part-time and hourly Section 5.16(b) of the Disclosure Schedule accurately describes such benefits.
(c) The employment of the employees of the Acquired Companies as of a date not more than ten (10) days prior to the date of this Agreement (the “Employees”), (ii) all consultants and other independent contractors to is terminable by the Acquired Companies who have rendered services material at will and no employee is entitled to severance pay or other benefits following termination or resignation, except as otherwise provided by Applicable Law. No Acquired Company is now, and no Acquired Company has never been, party to any union contract, collective bargaining agreement or similar Contract and to the business Knowledge of the Acquired Companies within the last twelve (12) months, and (iii) the directors, executive officers and any advisory board members of Sellers or the Acquired Companies, if any, including an organizational chart there have been no union organizing activities among the employees of each. Section 4.21(b) of the Disclosure Schedule also sets forth for each Employee the following information as of a date not more than ten (10) days prior to the date of this Agreement: (v) title (if manager level any Acquired Company or above), (w) base or hourly compensation, (x) accrued and unused vacation and sick pay (to the extent such vacation and sick pay constitutes an obligation which will be due and payable upon termination of such employee), (y) by any severance obligation of the Acquired Companies which may result upon consummation of the transactions contemplated by this AgreementUnion, and (z) bonuses paid there has not been any representation or accrued with respect to the current fiscal year in the aggregate for all Employees. Except as set forth on Section 4.21(b) of the Disclosure Schedulecertification proceedings or petitions pending or filed, and except as provided by Law, the employment of all persons presently employed or retained by each Acquired Company is terminable at will.
(c) Since January 1, 2007, the Acquired Companies have not experienced any work stoppage, slow-down, picket, strike, lock-out or other labor disturbance, nor is any such work stoppage, slow-down, picket, strike, lock-out or other labor disturbance presently occurring or, to the Knowledge of Sellers and or the Acquired Companies, Threatenedthreatened to be brought or filed, with the National Labor Relations Board or any other comparable foreign, state or local labor relations tribunal or authority. To Since January 1, 2018, there has been no organizing activity, work stoppage, slowdown, strike, lockout, arbitration, grievance or other labor dispute by or with employees of any Acquired Company (or its Representatives) pending, or, to the Knowledge of Sellers and or the Acquired Companies, (i) there are no organizational efforts presently being threatened. Sellers have made or Threatened by or on behalf available to Purchaser accurate copies of any labor union with respect all current employment agreements, employee manuals and handbooks relating to any Employees, and (ii) since January 1, 2007, no union or other labor organization has attempted to organize any current or former the employment of employees of the Acquired Companies. Neither Sellers, the Acquired Companies nor to their Knowledge any of the ERISA Affiliates are or were a party to any collective bargaining agreement.
(d) Except as disclosed in Section 4.21(dTo the Knowledge of Sellers: (i) no employee of the Disclosure ScheduleAcquired Companies intends to terminate such employee’s employment, there are (ii) no claims, controversies, labor disturbances, investigations, Proceedings or complaints pending or, employee of the Acquired Companies has received an offer to Knowledge join a business that is competitive with the business of Sellers and the Acquired Companies, Threatened, and (iii) no employee of the Acquired Companies is a party to or is bound by any Governmental Authorityconfidentiality agreement, noncompetition agreement or other Contract (with any Employees, any party or parties representing Person) that may have an adverse effect on (A) the performance by such employee of any of such Employeesemployee’s duties or responsibilities as an employee of the Acquired Companies; or (B) the business of the Acquired Companies.
(e) Since January 1, 2018, there has not been any slowdown, work stoppage, labor dispute or, to the Knowledge of Sellers, any similar activity or any former employer of a current Employeedispute, against affecting the Acquired Companies before or any courtof their employees, arbitrator and, to the Knowledge of Sellers, no Person has threatened to commence any such slowdown, work stoppage or labor dispute or any similar activity or dispute.
(f) The Acquired Companies are not party to, or otherwise bound by, any Order relating to employees or labor or employment practices, and, since January 1, 2018, there has been no charge of discrimination or other tribunal. There are no Proceeding pending, or to the Knowledge of Sellers, threatened to be brought or filed, by or with any Governmental Entity or arbitrator in connection with the employment of any current or former employee of any Acquired Company, including any claim relating to relating to any employment Contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, workers’ compensation policy, long-term disability policy, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any employee (including former employees), including charges of unfair labor practice chargespractices or discrimination complaints or any other employment-related matter arising under applicable Law.
(g) The Acquired Companies are, charges of and since January 1, 2018, have been, in compliance in all material respects with all Applicable Laws relating to the employment and employment practices, including provisions thereof relating to employment, employment practices, wages, hours, employment discrimination, wrongful termination or other similar complaints pending against employee classification, workers’ compensation, family and medical leave, the Immigration Reform and Control Act, occupational safety and health requirements, equal opportunity and collective bargaining. Each individual who renders services to the Acquired Companies involving employees now who is classified by the Acquired Companies, as applicable, as having the status of an independent contractor, consultant or previously employed other non-employee status for any purpose (including for purposes of taxation and Tax reporting and under Company Benefit Plans) is properly so characterized. Each current and former employee classified by the Acquired Companies that would have a Material Adverse Effectas exempt from overtime minimum wage requirements, were and are properly classified as exempt under applicable Law. Since January 1, 2018, there has not been any allegation of or, to the Knowledge of Sellers, act relating to, sex-based discrimination, sexual harassment, sexual misconduct, workplace harassment, or breach of any Acquired Company policy relating to the foregoing, in each case involving any current or former employee or current or former independent contractor or consultant of the Acquired Company, nor has there been any settlement or similar out-of-court or pre-litigation arrangement relating to any such matters, nor, to the Knowledge of Sellers and the Acquired CompaniesSellers, do has any facts such action, settlement or circumstances exist that could provide a reasonable basis for the sameother arrangement been proposed.
(eh) There has The Acquired Companies have not been with respect to undertaken any Acquired Company (i) action at any time since January 1, 2018 that would constitute a “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar state, local or foreign Law) affecting any site of employment or one or more facilities or operating units within any site of employment or facility, or (ii) a “mass layoff” (as defined in that triggered or would trigger the notice or other obligations under the WARN Act, or incurred any similar state, local Liability or foreign Law) affecting obligation under the WARN Act that remains unsatisfied. The Acquired Companies have no plan to undertake any site of employment action prior to the Closing that would trigger any notice or facilityother obligations under the WARN Act. None No employee of the employees of any Acquired Company Companies has suffered or will have experienced an “employment loss” (as defined in the WARN Act which takes place either at the time of Closing or any similar state, local or foreign Law) during the ninety-day period prior to ninety (90) calendar days preceding the date of this AgreementClosing Date.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (ProFrac Holding Corp.)
