Common use of Employees and Labor Matters Clause in Contracts

Employees and Labor Matters. (a) Section 3.8(a) of the Seller Disclosure Letter sets forth the following: (i) a true, complete and accurate list of all employees of, and all independent contractors and consultants providing services to, each Success Subject Company, (ii) each such Person’s date of hire, position and title (if any), (iii) any applicable leave status (i.e., military, medical, disability, workers’ compensation or otherwise) and the date such Person became inactive, as well as the expected return to work date, (iv) such Person’s current rate of compensation (identifying bonuses, commissions, incentive compensation and equity-based compensation, if any, separately), and (v) in the case of an employee: (A) whether such employee is hourly or salaried, (B) whether such employee is classified as exempt or non-exempt, and (C) the number of such employee’s accrued sick days and vacation days. The Success Subject Companies have provided to the Purchaser all employment, independent contractor, consulting and similar agreements for the provision of services to any of the Success Subject Companies and all employee handbooks, policies, programs and arrangements, except for those that are not material to the operations of the Transferred Companies. There are no arrangements, whether written or oral, to increase any compensation paid to any employee, independent contractor, or consultant of the Success Subject Companies other than what has been made available to the Purchaser. No change of control or similar provisions contained in any of the Success Subject Company’s employment agreements will be triggered by the Contemplated Transactions. No Person identified on Section 3.8(a) of the Seller Disclosure Letter has received any bonus or increase in compensation since the Latest Success Balance Sheet Date, nor since such date has there been any promise orally or in writing to any such Person of any bonus or increase in compensation. Each Person who performs (or in the past has performed) services for any Success Subject Company or who otherwise has Claims for compensation from any Success Subject Company has been properly classified as an employee or an independent contractor pursuant to all applicable Laws, including, but not limited to, the Code and ERISA, except for any failures to properly classify thereof that which would not, individually or in the aggregate, reasonably be expected to result in aggregate liabilities, losses and costs in excess of $25,000 (b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Success Subject Company has any unsatisfied payment of any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment Tax or similar liability to any employee, independent contractor, consultant, other Person in respect of services performed on or prior to the Closing Date. (c) No employee, independent contractor, consultant, or other Person providing services to any of the Success Subject Companies, or any group thereof, has informed any Success Subject Company of any plans to terminate his or her employment or other relationship with any Success Subject Company as a result of the Contemplated Transactions or otherwise. No Success Subject Company has taken any action, or, to the Knowledge of the Transferred Companies, failed to take any action, that would reasonably be likely to result in any Claim by a current or former employee of any Success Subject Company that he or she has been constructively terminated or is due severance payments. (d) Except as set forth in Section 3.8(d) of the Seller Disclosure Letter, all employees of the Success Subject Companies are employed “at will” or otherwise employed such that the Success Subject Companies may lawfully terminate their employment at any time, with or without cause, without any contractual or statutory obligation to pay severance or the equivalent and without giving rise to any cause of action for wrongful discharge, breach of contract, tort or any other similar Claim at law or in equity. A true, correct and complete copy of any form of non-competition, non-solicitation, proprietary rights, confidentiality or similar agreement currently in force with any employee, independent contractor, consultant, or other Person providing services to the Success Subject Companies, and any material variances therefrom, has been delivered to the Purchaser. (e) The Transferred Companies and, to the Knowledge of the Transferred Companies, the other Success Subject Companies, employ individuals who are lawfully permitted to work in the United States and the Success Subject Companies are in compliance in all material respects with all applicable Laws regarding immigration and/or employment of non-citizen workers. No Success Subject Company has been notified of any pending or threatened investigation by any branch or department of the United States Department of Immigration and Customs Enforcement (“ICE”) or any other Governmental Authority charged with administration or enforcement of federal immigration Laws concerning any Success Subject Company, and no Success Subject Company has received any “no match” notices from ICE, the Social Security Administration or the Internal Revenue Service within the twelve (12) months prior to the date of this Agreement. (f) Except as set forth in Section 3.8(f) of the Seller Disclosure Letter, the Success Subject Companies have complied in all material respects with all applicable Laws relating to labor, labor relations or employment and employment practices, including, any provisions thereof relating to equal employment opportunity, wages, hours, overtime regulation, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, occupational safety and health, workers’ compensation, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Success Subject Companies are not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. Without limiting the generality of the foregoing, no Success Subject Company has incurred a violation of COBRA or other applicable state insurance continuation law. No material COBRA or other state insurance continuation law violation exists or will exist with respect to any employees of any Success Subject Company prior to and including the Closing Date, nor will any such violation occur as a result of the Contemplated Transactions. As of the Closing Date, no Success Subject Company will, nor has any Success Subject Company ever been, an enterprise subject to the WARN Act, and no Success Subject Company has previously incurred, nor will it incur, any liabilities under the WARN Act. The Success Subject Companies maintain and file, to the extent required by Law, a Form EEO-1 with the federal Equal Employment Opportunity Commission. The Success Subject Companies maintain, monitor, and file, to the extent required by Law, any and all required affirmative action plans required as a consequence of any state, federal or local government contracts, including any obligations under Federal Executive Order 11246. (g) Except as set forth in Section 3.8(g) of the Seller Disclosure Letter, no Success Subject Company has received any Claims relating to any Success Subject Company’s employees, independent contractors, consultants, or other Persons providing services to the Success Subject Companies or relating to such Person’s employment by the Success Subject Companies, including in the nature of workers’ compensation claims or charges, or complaints of employment discrimination. (h) No Success Subject Company is a party to or bound by any collective bargaining agreement, project labor agreement, memorandum of understanding, letter agreement, side agreement, or any other Contract or arrangement with any labor union or labor organization. To the Transferred Companies’ Knowledge, no organizational effort is presently being made or threatened by or on behalf of any labor union with respect to employees, independent contractors, consultants or other Persons providing services to any of the Success Subject Companies, nor is any Success Subject Company subject to any charge, demand, union organizational activity, request or recognition, application for certification of a collective bargaining agent, petition or representation proceeding seeking to compel, require or demand it to recognize and/or bargain with any labor union or labor organization. No Success Subject Company is engaged in any unfair labor practice and there is (A) no unfair labor practice charge or complaint pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, so threatened, (B) no strike, labor dispute, slow down, walkout, picketing or work stoppage pending against the Success Subject Companies or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company, and (C) no employee grievances pending under any previously-established grievance procedure. There is no lockout of any employees of any Success Subject Company, no such action is contemplated by the Success Subject Companies, and, to the Transferred Companies’ Knowledge, no event has occurred or circumstances exist that is reasonably likely to cause any work stoppage or other labor dispute with respect to employees of any Success Subject Company.

Employees and Labor Matters. (a) Section 3.8(aTo Borrower’s knowledge, none of Borrower’s employees is bound by any agreement with any other Person that is violated or breached by such employee performing the services he or she is currently performing for Borrower. (b) of the Seller Disclosure Letter sets forth the following: Borrower is not delinquent (i) a truein any payments to any of its respective employees or other personnel for any wages, complete and accurate list of all employees ofsalaries, and all independent contractors and consultants providing services tocommissions, each Success Subject Companybonuses or other direct compensation, or (ii) in any material respect, in any payments to consultants, independent contractors’ agents, or representatives, for any services performed by them in any capacity, in each such Person’s date of hirecase, position and title (if any), (iii) any applicable leave status (i.e., military, medical, disability, workers’ compensation or otherwise) and to the date such Person became inactive, as well as the expected return hereof or for amounts required to work date, (iv) such Person’s current rate of compensation (identifying bonuses, commissions, incentive compensation and equity-based compensation, if any, separately), and (v) in the case of an employee: (A) whether such employee is hourly or salaried, (B) whether such employee is classified as exempt or non-exempt, and (C) the number of such employee’s accrued sick days and vacation days. The Success Subject Companies have provided to the Purchaser all employment, independent contractor, consulting and similar agreements for the provision of services to any of the Success Subject Companies and all employee handbooks, policies, programs and arrangements, except for those that are not material to the operations of the Transferred Companies. There are no arrangements, whether written or oral, to increase any compensation paid to any employee, independent contractor, or consultant of the Success Subject Companies other than what has been made available to the Purchaser. No change of control or similar provisions contained in any of the Success Subject Company’s employment agreements will be triggered by the Contemplated Transactions. No Person identified on Section 3.8(a) of the Seller Disclosure Letter has received any bonus or increase in compensation since the Latest Success Balance Sheet Date, nor since such date has there been any promise orally or in writing reimbursed to any such Person of any bonus or increase in compensation. Each Person who performs (or in the past has performed) services for any Success Subject Company or who otherwise has Claims for compensation from any Success Subject Company has been properly classified as an employee or an independent contractor pursuant to all applicable Laws, including, but not limited to, the Code and ERISA, except for any failures to properly classify thereof that which would not, individually or in the aggregate, reasonably be expected to result in aggregate liabilities, losses and costs in excess of $25,000 (b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Success Subject Company has any unsatisfied payment of any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment Tax or similar liability to any employee, independent contractor, consultant, other Person in respect of services performed on or prior to the Closing Datedate hereof. (c) No employee, independent contractor, consultant, or other Person providing services to any As of the Success Subject Companiesdate hereof, there is no collective bargaining agreement or union contract binding on Borrower, there has not been any group thereofunion organizing activity with respect to Borrower, has informed any Success Subject Company of any plans and no union vote is pending with respect to terminate his or her employment or other relationship with any Success Subject Company as a result of the Contemplated Transactions or otherwise. No Success Subject Company has taken any action, or, to the Knowledge of the Transferred Companies, failed to take any action, that would reasonably be likely to result in any Claim by a current or former employee of any Success Subject Company that he or she has been constructively terminated or is due severance paymentsBorrower. (d) Except as would not reasonably be expected to have a Material Adverse Effect and except as set forth in Section 3.8(dSchedule 4.14, (i) there are no unfair labor practice charges or complaints, minimum wage or overtime or equal pay charges or complaints, occupational safety and health charges or complaints, wrongful discharge charges or complaints, employee grievances, discrimination claims or workers’ compensation claims pending or, to the knowledge of the Seller Disclosure LetterBorrower, all employees threatened against either of the Success Subject Companies are employed “at will” or otherwise employed such that the Success Subject Companies may lawfully terminate their employment at them before any timeGovernmental Authority, with or without cause, without and (ii) neither Borrower nor any contractual or statutory obligation to pay severance or the equivalent and without giving rise to of its senior officers has received notice from any cause of action for wrongful discharge, breach of contract, tort or any other similar Claim at law or in equity. A true, correct and complete copy Governmental Authority of any form alleged violation of non-competitionapplicable law that remains unresolved respecting employment and employment practices, non-solicitation, proprietary rights, confidentiality or similar agreement currently in force with any employee, independent contractor, consultantterms and conditions of employment, or other Person providing services to the Success Subject Companies, wage and any material variances therefrom, has been delivered to the Purchaserhours. (e) The Transferred Companies and, to the Knowledge of the Transferred Companies, the other Success Subject Companies, employ individuals who are lawfully permitted to work in the United States and the Success Subject Companies are Borrower is in compliance in all material respects with all applicable Laws regarding immigration and/or employment of non-citizen workers. No Success Subject Company has been notified of any pending or threatened investigation by any branch or department of the United States Department of Immigration federal, state, local and Customs Enforcement (“ICE”) or any other Governmental Authority charged foreign laws, ordinances, regulations and Orders with administration or enforcement of federal immigration Laws concerning any Success Subject Company, and no Success Subject Company has received any “no match” notices from ICE, the Social Security Administration or the Internal Revenue Service within the twelve (12) months prior respect to the date wages, hours and working conditions of this Agreementits respective employees. (f) Except (i) as set forth in Section 3.8(f) of the Seller Disclosure Letter, the Success Subject Companies have complied in all material respects with all applicable Laws relating to labor, labor relations or employment and employment practices, including, any provisions thereof relating to equal employment opportunity, wages, hours, overtime regulation, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, occupational safety and health, workers’ compensation, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Success Subject Companies are not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. Without limiting the generality of the foregoing, no Success Subject Company has incurred a violation of COBRA or other applicable state insurance continuation law. No material COBRA or other state insurance continuation law violation exists or will exist with respect to any employees of any Success Subject Company prior to and including the Closing Date, nor will any such violation occur as a result of the Contemplated Transactions. As of the Closing Date, no Success Subject Company will, nor has any Success Subject Company ever been, an enterprise subject to the WARN Act, and no Success Subject Company has previously incurred, nor will it incur, any liabilities under the WARN Act. The Success Subject Companies maintain and file, to the extent required by Law, a Form EEO-1 filings with the federal Equal Employment Opportunity Commission. The Success Subject Companies maintainSEC, monitor, and file, (ii) as otherwise disclosed to the extent required by Law, any and all required affirmative action plans required as a consequence of any state, federal Lender or local government contracts, including any obligations under Federal Executive Order 11246. (giii) Except as set forth in Section 3.8(g) Schedule 4.14, as of the Seller Disclosure Letterdate hereof, no Success Subject Company none of Borrower’s executive officers has received any Claims relating to any Success Subject Company’s employees, independent contractors, consultants, an employment or other Persons providing services to the Success Subject Companies or relating to such Person’s employment by the Success Subject Companies, including in the nature of workers’ compensation claims or charges, or complaints of employment discrimination. (h) No Success Subject Company is a party to or bound by any collective bargaining agreement, project labor agreement, memorandum of understanding, letter agreement, side agreementseverance agreement with Borrower, or any other Contract or arrangement with any labor union or labor organization. To the Transferred Companies’ Knowledge, no organizational effort is presently being made or threatened by or on behalf agreement that provides for severance payments in excess of any labor union with respect to employees, independent contractors, consultants $250,000 or other Persons providing services to any of the Success Subject Companies, nor is any Success Subject Company subject to any charge, demand, union organizational activity, request or recognition, application for certification of a collective bargaining agent, petition or representation proceeding seeking to compel, require or demand it to recognize and/or bargain with any labor union or labor organization. No Success Subject Company is engaged in any unfair labor practice and there is (A) no unfair labor practice charge or complaint pending against any Success Subject Company or, obligations material to the Transferred Companies’ KnowledgeBorrower and its Subsidiaries taken as a whole, threatened against any Success Subject Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out upon termination of or under any collective bargaining agreement is so pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, so threatened, (B) no strike, labor dispute, slow down, walkout, picketing or work stoppage pending against the Success Subject Companies or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company, and (C) no employee grievances pending under any previously-established grievance procedure. There is no lockout of any employees of any Success Subject Company, no such action is contemplated by the Success Subject Companies, and, to the Transferred Companies’ Knowledge, no event has occurred or circumstances exist that is reasonably likely to cause any work stoppage or other labor dispute with respect to employees of any Success Subject Companyemployment.

Employees and Labor Matters. (a) Section 3.8(a) of the Seller Disclosure Letter sets forth the following: (i) a true, complete and accurate list of all employees of, and all independent contractors and consultants providing services to, each Success Subject Company, (ii) each such Person’s 's date of hire, position and title (if any), (iii) any applicable leave status (i.e., military, medical, disability, workers’ ' compensation or otherwise) and the date such Person became inactive, as well as the expected return to work date, (iv) such Person’s 's current rate of compensation (identifying bonuses, commissions, incentive compensation and equity-based compensation, if any, separately), and (v) in the case of an employee: (A) whether such employee is hourly or salaried, (B) whether such employee is classified as exempt or non-exempt, and (C) the number of such employee’s 's accrued sick days and vacation days. The Success Subject Companies have provided to the Purchaser all employment, independent contractor, consulting and similar agreements for the provision of services to any of the Success Subject Companies and all employee handbooks, policies, programs and arrangements, except for those that are not material to the operations of the Transferred Companies. There are no arrangements, whether written or oral, to increase any compensation paid to any employee, independent contractor, or consultant of the Success Subject Companies other than what has been made available to the Purchaser. No change of control or similar provisions contained in any of the Success Subject Company’s 's employment agreements will be triggered by the Contemplated Transactions. No Person identified on Section 3.8(a) of the Seller Disclosure Letter has received any bonus or increase in compensation since the Latest Success Balance Sheet Date, nor since such date has there been any promise orally or in writing to any such Person of any bonus or increase in compensation. Each Person who performs (or in the past has performed) services for any Success Subject Company or who otherwise has Claims for compensation from any Success Subject Company has been properly classified as an employee or an independent contractor pursuant to all applicable Laws, including, but not limited to, the Code and ERISA, except for any failures to properly classify thereof that which would not, individually or in the aggregate, reasonably be expected to result in aggregate liabilities, losses and costs in excess of $25,000 (b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Success Subject Company has any unsatisfied payment of any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment Tax or similar liability to any employee, independent contractor, consultant, other Person in respect of services performed on or prior to the Closing Date. (c) No employee, independent contractor, consultant, or other Person providing services to any of the Success Subject Companies, or any group thereof, has informed any Success Subject Company of any plans to terminate his or her employment or other relationship with any Success Subject Company as a result of the Contemplated Transactions or otherwise. No Success Subject Company has taken any action, or, to the Knowledge of the Transferred Companies, failed to take any action, that would reasonably be likely to result in any Claim by a current or former employee of any Success Subject Company that he or she has been constructively terminated or is due severance payments. (d) Except as set forth in Section 3.8(d) of the Seller Disclosure Letter, all employees of the Success Subject Companies are employed “"at will” " or otherwise employed such that the Success Subject Companies may lawfully terminate their employment at any time, with or without cause, without any contractual or statutory obligation to pay severance or the equivalent and without giving rise to any cause of action for wrongful discharge, breach of contract, tort or any other similar Claim at law or in equity. A true, correct and complete copy of any form of non-competition, non-solicitation, proprietary rights, confidentiality or similar agreement currently in force with any employee, independent contractor, consultant, or other Person providing services to the Success Subject Companies, and any material variances therefrom, has been delivered to the Purchaser. (e) The Transferred Companies and, to the Knowledge of the Transferred Companies, the other Success Subject Companies, employ individuals who are lawfully permitted to work in the United States and the Success Subject Companies are in compliance in all material respects with all applicable Laws regarding immigration and/or employment of non-citizen workers. No Success Subject Company has been notified of any pending or threatened investigation by any branch or department of the United States Department of Immigration and Customs Enforcement (“"ICE”") or any other Governmental Authority charged with administration or enforcement of federal immigration Laws concerning any Success Subject Company, and no Success Subject Company has received any “"no match” " notices from ICE, the Social Security Administration or the Internal Revenue Service within the twelve (12) months prior to the date of this Agreement. (f) Except as set forth in Section 3.8(f) of the Seller Disclosure Letter, the Success Subject Companies have complied in all material respects with all applicable Laws relating to labor, labor relations or employment and employment practices, including, any provisions thereof relating to equal employment opportunity, wages, hours, overtime regulation, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, occupational safety and health, workers’ ' compensation, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Success Subject Companies are not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. Without limiting the generality of the foregoing, no Success Subject Company has incurred a violation of COBRA or other applicable state insurance continuation law. No material COBRA or other state insurance continuation law violation exists or will exist with respect to any employees of any Success Subject Company prior to and including the Closing Date, nor will any such violation occur as a result of the Contemplated Transactions. As of the Closing Date, no Success Subject Company will, nor has any Success Subject Company ever been, an enterprise subject to the WARN Act, and no Success Subject Company has previously incurred, nor will it incur, any liabilities under the WARN Act. The Success Subject Companies maintain and file, to the extent required by Law, a Form EEO-1 with the federal Equal Employment Opportunity Commission. The Success Subject Companies maintain, monitor, and file, to the extent required by Law, any and all required affirmative action plans required as a consequence of any state, federal or local government contracts, including any obligations under Federal Executive Order 11246. (g) Except as set forth in Section 3.8(g) of the Seller Disclosure Letter, no Success Subject Company has received any Claims relating to any Success Subject Company’s 's employees, independent contractors, consultants, or other Persons providing services to the Success Subject Companies or relating to such Person’s 's employment by the Success Subject Companies, including in the nature of workers’ ' compensation claims or charges, or complaints of employment discrimination. (h) No Success Subject Company is a party to or bound by any collective bargaining agreement, project labor agreement, memorandum of understanding, letter agreement, side agreement, or any other Contract or arrangement with any labor union or labor organization. To the Transferred Companies’ ' Knowledge, no organizational effort is presently being made or threatened by or on behalf of any labor union with respect to employees, independent contractors, consultants or other Persons providing services to any of the Success Subject Companies, nor is any Success Subject Company subject to any charge, demand, union organizational activity, request or recognition, application for certification of a collective bargaining agent, petition or representation proceeding seeking to compel, require or demand it to recognize and/or bargain with any labor union or labor organization. No Success Subject Company is engaged in any unfair labor practice and there is (A) no unfair labor practice charge or complaint pending against any Success Subject Company or, to the Transferred Companies’ ' Knowledge, threatened against any Success Subject Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against any Success Subject Company or, to the Transferred Companies’ ' Knowledge, so threatened, (B) no strike, labor dispute, slow down, walkout, picketing or work stoppage pending against the Success Subject Companies or, to the Transferred Companies’ ' Knowledge, threatened against any Success Subject Company, and (C) no employee grievances pending under any previously-established grievance procedure. There is no lockout of any employees of any Success Subject Company, no such action is contemplated by the Success Subject Companies, and, to the Transferred Companies’ ' Knowledge, no event has occurred or circumstances exist that is reasonably likely to cause any work stoppage or other labor dispute with respect to employees of any Success Subject Company.

Employees and Labor Matters. (a) Section 3.8(aTo Borrower’s knowledge, none of Borrower’s employees is bound by any agreement with any other Person that is violated or breached by such employee performing the services he or she is currently performing for Borrower. (b) of the Seller Disclosure Letter sets forth the following: Borrower is not delinquent (i) a truein any payments to any of its respective employees or other personnel for any wages, complete and accurate list of all employees ofsalaries, and all independent contractors and consultants providing services tocommissions, each Success Subject Companybonuses or other direct compensation, or (ii) in any material respect, in any payments to consultants, independent contractors’ agents, or representatives, for any services performed by them in any capacity, in each such Person’s date of hirecase, position and title (if any), (iii) any applicable leave status (i.e., military, medical, disability, workers’ compensation or otherwise) and to the date such Person became inactive, as well as the expected return hereof or for amounts required to work date, (iv) such Person’s current rate of compensation (identifying bonuses, commissions, incentive compensation and equity-based compensation, if any, separately), and (v) in the case of an employee: (A) whether such employee is hourly or salaried, (B) whether such employee is classified as exempt or non-exempt, and (C) the number of such employee’s accrued sick days and vacation days. The Success Subject Companies have provided to the Purchaser all employment, independent contractor, consulting and similar agreements for the provision of services to any of the Success Subject Companies and all employee handbooks, policies, programs and arrangements, except for those that are not material to the operations of the Transferred Companies. There are no arrangements, whether written or oral, to increase any compensation paid to any employee, independent contractor, or consultant of the Success Subject Companies other than what has been made available to the Purchaser. No change of control or similar provisions contained in any of the Success Subject Company’s employment agreements will be triggered by the Contemplated Transactions. No Person identified on Section 3.8(a) of the Seller Disclosure Letter has received any bonus or increase in compensation since the Latest Success Balance Sheet Date, nor since such date has there been any promise orally or in writing reimbursed to any such Person of any bonus or increase in compensation. Each Person who performs (or in the past has performed) services for any Success Subject Company or who otherwise has Claims for compensation from any Success Subject Company has been properly classified as an employee or an independent contractor pursuant to all applicable Laws, including, but not limited to, the Code and ERISA, except for any failures to properly classify thereof that which would not, individually or in the aggregate, reasonably be expected to result in aggregate liabilities, losses and costs in excess of $25,000 (b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Success Subject Company has any unsatisfied payment of any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment Tax or similar liability to any employee, independent contractor, consultant, other Person in respect of services performed on or prior to the Closing Datedate hereof. (c) No employee, independent contractor, consultant, or other Person providing services to any As of the Success Subject Companiesdate hereof, there is no collective bargaining agreement or union contract binding on Borrower, there has not been any group thereofunion organizing activity with respect to Borrower, has informed any Success Subject Company of any plans and no union vote is pending with respect to terminate his or her employment or other relationship with any Success Subject Company as a result of the Contemplated Transactions or otherwise. No Success Subject Company has taken any action, or, to the Knowledge of the Transferred Companies, failed to take any action, that would reasonably be likely to result in any Claim by a current or former employee of any Success Subject Company that he or she has been constructively terminated or is due severance paymentsBorrower. (d) Except as set forth in Section 3.8(dwould not reasonably be expected to have a Material Adverse Effect, (i) there are no unfair labor practice charges or complaints, minimum wage or overtime or equal pay charges or complaints, occupational safety and health charges or complaints, wrongful discharge charges or complaints, employee grievances, discrimination claims or workers’ compensation claims pending or, to the knowledge of the Seller Disclosure LetterBorrower, all employees threatened against either of the Success Subject Companies are employed “at will” or otherwise employed such that the Success Subject Companies may lawfully terminate their employment at them before any timeGovernmental Authority, with or without cause, without and (ii) neither Borrower nor any contractual or statutory obligation to pay severance or the equivalent and without giving rise to of its senior officers has received notice from any cause of action for wrongful discharge, breach of contract, tort or any other similar Claim at law or in equity. A true, correct and complete copy Governmental Authority of any form alleged violation of non-competitionapplicable law that remains unresolved respecting employment and employment practices, non-solicitation, proprietary rights, confidentiality or similar agreement currently in force with any employee, independent contractor, consultantterms and conditions of employment, or other Person providing services to the Success Subject Companies, wage and any material variances therefrom, has been delivered to the Purchaserhours. (e) The Transferred Companies and, to the Knowledge of the Transferred Companies, the other Success Subject Companies, employ individuals who are lawfully permitted to work in the United States and the Success Subject Companies are Borrower is in compliance in all material respects with all applicable Laws regarding immigration and/or employment of non-citizen workers. No Success Subject Company has been notified of any pending or threatened investigation by any branch or department of the United States Department of Immigration federal, state, local and Customs Enforcement (“ICE”) or any other Governmental Authority charged foreign laws, ordinances, regulations and Orders with administration or enforcement of federal immigration Laws concerning any Success Subject Company, and no Success Subject Company has received any “no match” notices from ICE, the Social Security Administration or the Internal Revenue Service within the twelve (12) months prior respect to the date wages, hours and working conditions of this Agreementits respective employees. (f) Except as set forth in Section 3.8(f) applicable filings with the SEC or as otherwise disclosed to Lender, as of the Seller Disclosure Letterdate hereof, the Success Subject Companies have complied in all material respects none of Borrower’s executive officers has an employment or severance agreement with all applicable Laws relating to labor, labor relations or employment and employment practices, including, any provisions thereof relating to equal employment opportunity, wages, hours, overtime regulation, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, occupational safety and health, workers’ compensation, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Success Subject Companies are not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. Without limiting the generality of the foregoing, no Success Subject Company has incurred a violation of COBRA or other applicable state insurance continuation law. No material COBRA or other state insurance continuation law violation exists or will exist with respect to any employees of any Success Subject Company prior to and including the Closing Date, nor will any such violation occur as a result of the Contemplated Transactions. As of the Closing Date, no Success Subject Company will, nor has any Success Subject Company ever been, an enterprise subject to the WARN Act, and no Success Subject Company has previously incurred, nor will it incur, any liabilities under the WARN Act. The Success Subject Companies maintain and file, to the extent required by Law, a Form EEO-1 with the federal Equal Employment Opportunity Commission. The Success Subject Companies maintain, monitor, and file, to the extent required by Law, any and all required affirmative action plans required as a consequence of any state, federal or local government contracts, including any obligations under Federal Executive Order 11246. (g) Except as set forth in Section 3.8(g) of the Seller Disclosure Letter, no Success Subject Company has received any Claims relating to any Success Subject Company’s employees, independent contractors, consultants, or other Persons providing services to the Success Subject Companies or relating to such Person’s employment by the Success Subject Companies, including in the nature of workers’ compensation claims or charges, or complaints of employment discrimination. (h) No Success Subject Company is a party to or bound by any collective bargaining agreement, project labor agreement, memorandum of understanding, letter agreement, side agreementBorrower, or any other Contract or arrangement with any labor union or labor organization. To the Transferred Companies’ Knowledge, no organizational effort is presently being made or threatened by or on behalf agreement that provides for severance payments in excess of any labor union with respect to employees, independent contractors, consultants $250,000 or other Persons providing services to any of the Success Subject Companies, nor is any Success Subject Company subject to any charge, demand, union organizational activity, request or recognition, application for certification of a collective bargaining agent, petition or representation proceeding seeking to compel, require or demand it to recognize and/or bargain with any labor union or labor organization. No Success Subject Company is engaged in any unfair labor practice and there is (A) no unfair labor practice charge or complaint pending against any Success Subject Company or, obligations material to the Transferred Companies’ KnowledgeBorrower and its Subsidiaries taken as a whole, threatened against any Success Subject Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out upon termination of or under any collective bargaining agreement is so pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, so threatened, (B) no strike, labor dispute, slow down, walkout, picketing or work stoppage pending against the Success Subject Companies or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company, and (C) no employee grievances pending under any previously-established grievance procedure. There is no lockout of any employees of any Success Subject Company, no such action is contemplated by the Success Subject Companies, and, to the Transferred Companies’ Knowledge, no event has occurred or circumstances exist that is reasonably likely to cause any work stoppage or other labor dispute with respect to employees of any Success Subject Companyemployment.

Employees and Labor Matters. (a) Section 3.8(a) 3.25 of the Seller Disclosure Letter Schedule sets forth the following: (i) a true, true and complete and accurate list of the names, titles, annual salaries and other compensation of all officers of the Company and its Subsidiaries and all other employees ofof the Company and its Subsidiaries (collectively, the “Key Employees”). (b) The Company and the Subsidiaries are in compliance with all currently Applicable Laws respecting employment and employment practices, terms and conditions of employment and wages and hours, and all independent contractors and consultants providing services toare not engaged in any unfair labor practice, each Success Subject Company, (ii) each such Person’s date of hire, position and title (if any), (iii) any applicable leave status (i.e., military, medical, disability, workers’ compensation failure to comply with which or otherwise) and the date such Person became inactiveengagement in which, as well as the expected return to work date, (iv) such Person’s current rate of compensation (identifying bonuses, commissions, incentive compensation and equity-based compensation, if any, separately), and (v) in the case of an employee: (A) whether such employee is hourly or salariedmay be, (B) whether such employee is classified as exempt or non-exempt, and (C) the number of such employee’s accrued sick days and vacation days. The Success Subject Companies would reasonably be expected to have provided to the Purchaser all employment, independent contractor, consulting and similar agreements for the provision of services to any of the Success Subject Companies and all employee handbooks, policies, programs and arrangements, except for those that are not material to the operations of the Transferred Companiesa Material Adverse Effect. There are no arrangements, whether written labor disputes or oral, to increase any compensation paid other disputes currently subject to any employeegrievance procedure, independent contractorarbitration or litigation with respect to any employee of the Company or the Subsidiaries. Neither the Company nor any Subsidiary has incurred any liability which remains outstanding for breach of any contract of employment or for services, for redundancy payments, protective awards or compensation, for wrongful or unfair dismissal, or consultant of for failure to comply with any order for the Success Subject Companies other than what has been made available to the Purchaser. No change of control reinstatement or similar provisions contained in any of the Success Subject Company’s employment agreements will be triggered by the Contemplated Transactions. No Person identified on Section 3.8(a) of the Seller Disclosure Letter has received any bonus or increase in compensation since the Latest Success Balance Sheet Date, nor since such date has there been any promise orally or in writing to any such Person re-engagement of any bonus or increase in compensation. Each Person who performs (or in the past has performed) services for any Success Subject Company or who otherwise has Claims for compensation from any Success Subject Company has been properly classified as an employee or an independent contractor pursuant to all applicable Laws, including, but not limited to, any other liability accruing from the Code and ERISA, except for any failures to properly classify thereof that which would not, individually or in the aggregate, reasonably be expected to result in aggregate liabilities, losses and costs in excess of $25,000 (b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Success Subject Company has any unsatisfied payment termination of any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, contract of employment Tax or similar liability to any employee, independent contractor, consultant, other Person in respect of services performed on or prior to the Closing Datefor services. (c) No employeeThe Company and the Subsidiaries have complied with Applicable Laws relating to social insurance and other benefits, independent contractorincluding pension, consultantmedical insurance, work-related injury insurance, birth and nursery insurance and unemployment insurance (collectively, the “Social Insurance”) and housing provident fund (together with Social Insurance, the “Benefits”). All contributions or other Person providing services payments required to be made or paid by the Company and the Subsidiaries or any of their employees to the relevant Governmental Authority with respect to any Benefit have been made or fully deducted, as applicable, and paid to on or before their due dates. None of the Success Subject Companies, current incentive programs (whether equity-based or any group thereof, has informed any Success Subject Company of any plans not) linked to terminate his or her employment or other relationship with any Success Subject Company as a result the performance of the Contemplated Transactions or otherwise. No Success Subject Company has taken any action, or, to the Knowledge employees of the Transferred Companies, failed to take any action, that would reasonably be likely to result in any Claim by a current Company or former employee its Subsidiaries conflicts with Applicable Laws of any Success Subject Company that he or she has been constructively terminated or is due severance paymentsthe PRC. (d) Except as set forth in on Section 3.8(d3.25(d) of the Seller Disclosure LetterSchedule, all employees no employee or former employee of the Success Subject Companies are employed “at will” Company or otherwise employed such that the Success Subject Companies may lawfully terminate their employment at any timeSubsidiary will become entitled to any bonus, with retirement, severance, job security or without causesimilar benefit, without any contractual or statutory obligation to pay severance or the equivalent and without giving rise to any cause of action for wrongful discharge, breach of contract, tort or any other similar Claim at law or in equity. A true, correct and complete copy enhancement of any form such benefit (including acceleration of non-competitionvesting or exercise of an incentive award), non-solicitation, proprietary rights, confidentiality or similar agreement currently in force with any employee, independent contractor, consultant, or other Person providing services to the Success Subject Companies, and any material variances therefrom, has been delivered to the Purchaser. (e) The Transferred Companies and, to the Knowledge of the Transferred Companies, the other Success Subject Companies, employ individuals who are lawfully permitted to work in the United States and the Success Subject Companies are in compliance in all material respects with all applicable Laws regarding immigration and/or employment of non-citizen workers. No Success Subject Company has been notified of any pending or threatened investigation by any branch or department of the United States Department of Immigration and Customs Enforcement (“ICE”) or any other Governmental Authority charged with administration or enforcement of federal immigration Laws concerning any Success Subject Company, and no Success Subject Company has received any “no match” notices from ICE, the Social Security Administration or the Internal Revenue Service within the twelve (12) months prior to the date of this Agreement. (f) Except as set forth in Section 3.8(f) of the Seller Disclosure Letter, the Success Subject Companies have complied in all material respects with all applicable Laws relating to labor, labor relations or employment and employment practices, including, any provisions thereof relating to equal employment opportunity, wages, hours, overtime regulation, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, occupational safety and health, workers’ compensation, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Success Subject Companies are not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. Without limiting the generality of the foregoing, no Success Subject Company has incurred a violation of COBRA or other applicable state insurance continuation law. No material COBRA or other state insurance continuation law violation exists or will exist with respect to any employees of any Success Subject Company prior to and including the Closing Date, nor will any such violation occur as a result of the Contemplated Transactions. As of the Closing Date, no Success Subject Company will, nor has any Success Subject Company ever been, an enterprise subject to the WARN Act, and no Success Subject Company has previously incurred, nor will it incur, any liabilities under the WARN Act. The Success Subject Companies maintain and file, to the extent required by Law, a Form EEO-1 with the federal Equal Employment Opportunity Commission. The Success Subject Companies maintain, monitor, and file, to the extent required by Law, any and all required affirmative action plans required as a consequence of any state, federal or local government contracts, including any obligations under Federal Executive Order 11246transactions contemplated hereby. (g) Except as set forth in Section 3.8(g) of the Seller Disclosure Letter, no Success Subject Company has received any Claims relating to any Success Subject Company’s employees, independent contractors, consultants, or other Persons providing services to the Success Subject Companies or relating to such Person’s employment by the Success Subject Companies, including in the nature of workers’ compensation claims or charges, or complaints of employment discrimination. (h) No Success Subject Company is a party to or bound by any collective bargaining agreement, project labor agreement, memorandum of understanding, letter agreement, side agreement, or any other Contract or arrangement with any labor union or labor organization. To the Transferred Companies’ Knowledge, no organizational effort is presently being made or threatened by or on behalf of any labor union with respect to employees, independent contractors, consultants or other Persons providing services to any of the Success Subject Companies, nor is any Success Subject Company subject to any charge, demand, union organizational activity, request or recognition, application for certification of a collective bargaining agent, petition or representation proceeding seeking to compel, require or demand it to recognize and/or bargain with any labor union or labor organization. No Success Subject Company is engaged in any unfair labor practice and there is (A) no unfair labor practice charge or complaint pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, so threatened, (B) no strike, labor dispute, slow down, walkout, picketing or work stoppage pending against the Success Subject Companies or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company, and (C) no employee grievances pending under any previously-established grievance procedure. There is no lockout of any employees of any Success Subject Company, no such action is contemplated by the Success Subject Companies, and, to the Transferred Companies’ Knowledge, no event has occurred or circumstances exist that is reasonably likely to cause any work stoppage or other labor dispute with respect to employees of any Success Subject Company.

Employees and Labor Matters. (a) Section 3.8(aTo Borrower’s knowledge, none of Borrower’s employees is bound by any agreement with any other Person that is violated or breached by such employee performing the services he or she is currently performing for Borrower. (b) of the Seller Disclosure Letter sets forth the following: Borrower is not delinquent (i) a truein any payments to any of its respective employees or other personnel for any wages, complete and accurate list of all employees ofsalaries, and all independent contractors and consultants providing services tocommissions, each Success Subject Companybonuses or other direct compensation, or (ii) in any material respect, in any payments to consultants, independent contractors’ agents, or representatives, for any services performed by them in any capacity, in each such Person’s date of hirecase, position and title (if any), (iii) any applicable leave status (i.e., military, medical, disability, workers’ compensation or otherwise) and to the date such Person became inactive, as well as the expected return hereof or for amounts required to work date, (iv) such Person’s current rate of compensation (identifying bonuses, commissions, incentive compensation and equity-based compensation, if any, separately), and (v) in the case of an employee: (A) whether such employee is hourly or salaried, (B) whether such employee is classified as exempt or non-exempt, and (C) the number of such employee’s accrued sick days and vacation days. The Success Subject Companies have provided to the Purchaser all employment, independent contractor, consulting and similar agreements for the provision of services to any of the Success Subject Companies and all employee handbooks, policies, programs and arrangements, except for those that are not material to the operations of the Transferred Companies. There are no arrangements, whether written or oral, to increase any compensation paid to any employee, independent contractor, or consultant of the Success Subject Companies other than what has been made available to the Purchaser. No change of control or similar provisions contained in any of the Success Subject Company’s employment agreements will be triggered by the Contemplated Transactions. No Person identified on Section 3.8(a) of the Seller Disclosure Letter has received any bonus or increase in compensation since the Latest Success Balance Sheet Date, nor since such date has there been any promise orally or in writing reimbursed to any such Person of any bonus or increase in compensation. Each Person who performs (or in the past has performed) services for any Success Subject Company or who otherwise has Claims for compensation from any Success Subject Company has been properly classified as an employee or an independent contractor pursuant to all applicable Laws, including, but not limited to, the Code and ERISA, except for any failures to properly classify thereof that which would not, individually or in the aggregate, reasonably be expected to result in aggregate liabilities, losses and costs in excess of $25,000 (b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Success Subject Company has any unsatisfied payment of any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment Tax or similar liability to any employee, independent contractor, consultant, other Person in respect of services performed on or prior to the Closing Datedate hereof. (c) No employee, independent contractor, consultant, or other Person providing services to any As of the Success Subject Companiesdate hereof, there is no collective bargaining agreement or union contract binding on Borrower, there has not been any group thereofunion organizing activity with respect to Borrower, has informed any Success Subject Company of any plans and no union vote is pending with respect to terminate his or her employment or other relationship with any Success Subject Company as a result of the Contemplated Transactions or otherwise. No Success Subject Company has taken any action, or, to the Knowledge of the Transferred Companies, failed to take any action, that would reasonably be likely to result in any Claim by a current or former employee of any Success Subject Company that he or she has been constructively terminated or is due severance paymentsBorrower. (d) Except as set forth in Section 3.8(dwould not reasonably be expected to have a Material Adverse Effect, (i) there are no unfair labor practice charges or complaints, minimum wage or overtime or equal pay charges or complaints, occupational safety and health charges or complaints, wrongful discharge charges or complaints, employee grievances, discrimination claims or workers’ compensation claims pending or, to the knowledge of the Seller Disclosure LetterBorrower, all employees threatened against either of the Success Subject Companies are employed “at will” or otherwise employed such that the Success Subject Companies may lawfully terminate their employment at them before any timeGovernmental Authority, with or without cause, without and (ii) neither Borrower nor any contractual or statutory obligation to pay severance or the equivalent and without giving rise to of its senior officers has received notice from any cause of action for wrongful discharge, breach of contract, tort or any other similar Claim at law or in equity. A true, correct and complete copy Governmental Authority of any form alleged violation of non-competitionapplicable law that remains unresolved respecting employment and employment practices, non-solicitation, proprietary rights, confidentiality or similar agreement currently in force with any employee, independent contractor, consultantterms and conditions of employment, or other Person providing services to the Success Subject Companies, wage and any material variances therefrom, has been delivered to the Purchaserhours. (e) The Transferred Companies and, to the Knowledge of the Transferred Companies, the other Success Subject Companies, employ individuals who are lawfully permitted to work in the United States and the Success Subject Companies are Borrower is in compliance in all material respects with all applicable Laws regarding immigration and/or employment of non-citizen workers. No Success Subject Company has been notified of any pending or threatened investigation by any branch or department of the United States Department of Immigration federal, state, local and Customs Enforcement (“ICE”) or any other Governmental Authority charged foreign laws, ordinances, regulations and Orders with administration or enforcement of federal immigration Laws concerning any Success Subject Company, and no Success Subject Company has received any “no match” notices from ICE, the Social Security Administration or the Internal Revenue Service within the twelve (12) months prior respect to the date wages, hours and working conditions of this Agreementits respective employees. (f) Except as set forth in Section 3.8(f) applicable filings with the SEC or as otherwise disclosed to Lender (or as will be disclosed by Lender not later than April 5, 2007), as of the Seller Disclosure Letterdate hereof, the Success Subject Companies have complied in all material respects none of Borrower’s executive officers has an employment or severance agreement with all applicable Laws relating to labor, labor relations or employment and employment practices, including, any provisions thereof relating to equal employment opportunity, wages, hours, overtime regulation, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, occupational safety and health, workers’ compensation, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Success Subject Companies are not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. Without limiting the generality of the foregoing, no Success Subject Company has incurred a violation of COBRA or other applicable state insurance continuation law. No material COBRA or other state insurance continuation law violation exists or will exist with respect to any employees of any Success Subject Company prior to and including the Closing Date, nor will any such violation occur as a result of the Contemplated Transactions. As of the Closing Date, no Success Subject Company will, nor has any Success Subject Company ever been, an enterprise subject to the WARN Act, and no Success Subject Company has previously incurred, nor will it incur, any liabilities under the WARN Act. The Success Subject Companies maintain and file, to the extent required by Law, a Form EEO-1 with the federal Equal Employment Opportunity Commission. The Success Subject Companies maintain, monitor, and file, to the extent required by Law, any and all required affirmative action plans required as a consequence of any state, federal or local government contracts, including any obligations under Federal Executive Order 11246. (g) Except as set forth in Section 3.8(g) of the Seller Disclosure Letter, no Success Subject Company has received any Claims relating to any Success Subject Company’s employees, independent contractors, consultants, or other Persons providing services to the Success Subject Companies or relating to such Person’s employment by the Success Subject Companies, including in the nature of workers’ compensation claims or charges, or complaints of employment discrimination. (h) No Success Subject Company is a party to or bound by any collective bargaining agreement, project labor agreement, memorandum of understanding, letter agreement, side agreementBorrower, or any other Contract or arrangement with any labor union or labor organization. To the Transferred Companies’ Knowledge, no organizational effort is presently being made or threatened by or on behalf of any labor union with respect to employees, independent contractors, consultants or other Persons providing services to any of the Success Subject Companies, nor is any Success Subject Company subject to any charge, demand, union organizational activity, request or recognition, application agreement that provides for certification of a collective bargaining agent, petition or representation proceeding seeking to compel, require or demand it to recognize and/or bargain with any labor union or labor organization. No Success Subject Company is engaged in any unfair labor practice and there is (A) no unfair labor practice charge or complaint pending against any Success Subject Company or, severance payments material to the Transferred Companies’ KnowledgeBorrower and its Subsidiaries taken as a whole, threatened against any Success Subject Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out upon termination of or under any collective bargaining agreement is so pending against any Success Subject Company or, to the Transferred Companies’ Knowledge, so threatened, (B) no strike, labor dispute, slow down, walkout, picketing or work stoppage pending against the Success Subject Companies or, to the Transferred Companies’ Knowledge, threatened against any Success Subject Company, and (C) no employee grievances pending under any previously-established grievance procedure. There is no lockout of any employees of any Success Subject Company, no such action is contemplated by the Success Subject Companies, and, to the Transferred Companies’ Knowledge, no event has occurred or circumstances exist that is reasonably likely to cause any work stoppage or other labor dispute with respect to employees of any Success Subject Companyemployment.