Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 of the Company Disclosure Letter accurately lists all current employees of the Company as of the Agreement Date, and for each such employee, his or her: (i) job position, (ii) classification as full-time, part-time or seasonal, (iii) classification as exempt or non-exempt under applicable state, federal or foreign overtime regulations, (iv) accrued but unused vacation or paid- time off, (v) average hours of work per week, (vi) visa type (if any), (vii) commencement date of employment with the Company, (viii) work location, (ix) severance entitlements, if any, and (x) leave status (including anticipated return to work date). Each employee classified by the Company as exempt earns in excess of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wage. Schedule 3.17(a)-2 of the Company Disclosure Letter accurately lists all independent contractors of the Company as of the Agreement Date, and for each such independent contractor, his or her: (A) terms of compensation, (B) total 2018 compensation and expected 2019 compensation, (C) commencement date with the Company or any Affiliate of the Company, (D) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third party. (b) The Company has correctly classified and paid employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and other Laws. All employees of the Company are, and have been since their respective start of employment by the Company, legally permitted to be employed by the Company in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All independent contractors providing services to the Company have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Company does not have any employment or consulting Contracts currently in effect that are not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of Proprietary Information or assignment of inventions). (c) The Company and each of its ERISA Affiliates: (i) are, and at all times have been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor Code, (ii) have withheld, paid and reported all amounts required by Law or by Contract to be withheld, paid and reported with respect to compensation, wages, salaries and other payments to employees or independent contractors of the Company, (iii) are not liable for any arrears of wages or any Taxes or any penalty for failure to comply with any Law, and (iv) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or any other applicable social insurance, or other benefits or obligations for employees of the Company (other than routine payments to be made in the Ordinary Course of Business). There are no pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Affiliates under any worker’s compensation policy or long-term disability policy. (d) The Company is not a party to or currently negotiating any collective bargaining or similar agreement with any labor union or organization, nor are any organized groups of its employees represented by any labor union. There is no, and in the past three (3) years there has been no pending, or to the Company’s Knowledge, threatened, labor dispute, work slowdown, work stoppage, strike, investigation by a Governmental Authority, involving the Company. To the Knowledge of the Company, (i) no employee of the Company currently intends to terminate his or her employment with the Company and (ii) no employee of the Company has received an offer to join a business that is competitive with the Company Business. (e) The Company is in compliance with the requirements of the Immigration Reform Control Act of 1986 and has a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each of its employees. (f) The Company has not been a party to any Action, or received written notice of any threatened Action, in which the Company was, or is, alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees. (g) There is no pending, or to the Knowledge of the Company, threatened, and for the four (4) years the Company has not received notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years the Company has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable Laws. (h) In the past two years, there has been no “mass layoff,” “employment loss,” or “plant closing” as defined by the WARN Act or any other Law in respect of the Company and the Company has not been affected by any transaction or engaged in any lay-offs or employment terminations sufficient in number to trigger application of any such Law. (i) To the Knowledge of the Company, no employee or independent contractor of the Company is in violation of (i) any term of any employment or independent contractor Contract with the Company or (ii) any term of any other Contract or any restrictive covenant relating to the right of any such employee or independent contractor to be employed by or to render services to the Company or to use Proprietary Information of others. The employment of any employee or engagement of any independent contractor by the Company does not subject them to any Liability to any third party. (j) Schedule 3.17(j) of the Company Disclosure Letter sets forth a true, complete and correct list of every Company Employee Plan and each Company Employee Agreement (each, a “Company Benefit Arrangement” and collectively, the “Company Benefit Arrangements”). (k) True, complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered to Parent: (i) all documents embodying or governing such Company Benefit Arrangement and any funding medium for the Company Benefit Arrangement; (ii) the most recently filed IRS Form 5500; (iii) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; and (iv) all non-routine correspondence to and from any state or federal agency. (l) No Company Benefit Arrangement is intended to qualify under Section 401(a) of the Code. (m) (i) Each Company Benefit Arrangement is, and has been operated in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with applicable Laws and regulations and with its terms.
Appears in 3 contracts
Samples: Merger Agreement (TPCO Holding Corp.), Merger Agreement (TPCO Holding Corp.), Merger Agreement (TPCO Holding Corp.)
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 3.16(a) of the Company Disclosure Letter accurately lists sets forth a true, correct and complete listing of all current employees of the Company (collectively, the “Company Employees”), all individuals currently performing services for and classified as independent contractors of the Company, and all current leased employees (as defined in Code Section 414(n)) of the Company, in each case, as of the Agreement Datedate hereof, and for including each such employeePerson’s name, his job title or her: (i) function and job positionlocation, (ii) classification as full-timehire date, full- or part-time or seasonalstatus, (iii) classification as exempt or non-exempt status under the Fair Labor Standards Act (the “FLSA”), as well as a true, correct and complete listing of his or her current base salary or wage rate payable by the Company, the target amount of any annual incentive compensation applicable stateto such Person, federal or foreign overtime regulations, (iv) the amount of accrued but unused vacation or paid- time and/or paid time off, (v) average hours of work per weekin each case, (vi) visa type (if any), (vii) commencement date of employment with the Company, (viii) work location, (ix) severance entitlements, if any, and (x) leave status (including anticipated return to work date). Each employee classified by the Company as exempt earns in excess of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wage. Schedule 3.17(a)-2 of the Company Disclosure Letter accurately lists all independent contractors of the Company as of the Agreement Datedate hereof, and for each such independent contractor, his or her: (A) terms of compensation, (B) total 2018 compensation and expected 2019 compensation, (C) commencement date with the Company or any Affiliate of the Company, (D) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third partyEmployee’s current leave status.
(b) The Company is, and since the Lookback Date has correctly classified been, in compliance, in all material respects, with all applicable Laws relating to labor, employment and paid employees as exempt employees fair employment practices, including, provisions relating to hiring, discharge and/or terms and nonexempt employees conditions of employment, discrimination in employment (including hiring), worker classification under the Fair Labor Standards Act FLSA and other applicable state and local Laws. All employees , wages and hours, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation employee leave issues, labor relations, unemployment insurance, overtime compensation, child labor, hiring, promotion and termination of employees, employee privacy, data protection, working conditions, meal and break periods, employment eligibility verification, affirmative action, employment and reemployment rights of members of uniformed services, secondment, civil rights, occupational safety and health, work visas and/or employment authorization (including the Company areImmigration Reform and Control Act), and have been is not engaged in any unfair labor practice. With respect to any Relevant Service provider engaged since their respective start of employment by the CompanyLookback Date, legally permitted to be employed by the Company in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All independent contractors providing services to the Company have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Company does not have any employment material Liability with respect to the misclassification of Relevant Service Providers as independent contractors, or consulting Contracts currently in effect that are not terminable at will with respect to the misclassification of employees as exempt versus non-exempt. In the last two (other than agreements with 2) years, no written allegations of sexual harassment have been made to the sole purpose Company against any current or former (i) officer of providing for the confidentiality Company or (ii) employee of Proprietary Information or assignment of inventions)the Company.
(c) The Company and each of its ERISA Affiliates: (i) are, and at all times have been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor Code, (ii) have withheld, paid and reported has withheld all amounts required by applicable Law or as otherwise directed by Contract to be withheld, paid and reported with respect to compensation, withheld from the wages, salaries salaries, and other payments to employees or the Company Employees and its independent contractors of the Company, (iii) are and leased employees; and is not liable for any arrears of wages wages, compensation, taxes, penalties or any Taxes or any penalty other sums for failure to comply with any Lawof the foregoing. The Company has paid in full to all Company Employees all wages, salaries, commissions, bonuses, accrued overtime, vacation pay and/or holiday pay, benefits and (iv) are not liable for any payment other compensation due to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority such Company Employees, has made required social security contributions with respect to unemployment compensation benefitseach Company Employee, social security and has paid in full to all independent contractors and consultants all remuneration due to or any other applicable social insurance, or other benefits or obligations for employees on behalf of the Company such independent contractors and consultants (other than routine payments to be made in accrued bonuses reflected on the Ordinary Course of BusinessCompany Balance Sheet). There are no Actions concerning the employment, or termination thereof, of any of the Company Employees, and no such Action is pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Affiliates under any worker’s compensation policy or long-term disability policythreatened.
(d) The Company is not a party to or currently negotiating bound by any labor agreement or collective bargaining agreement, work rules or similar practices, or any other labor-related agreement or arrangement with any labor union or union, labor organization, nor or works council, and to the Knowledge of the Company, and no employees, consultants or contractors are any organized groups of its employees represented by any a labor union. There is no, and in the past three (3) years there has been no pending, labor organization or works council with respect to their employment or provision of services to the Company’s Knowledge, threatened. No labor union, labor disputeorganization, work slowdownworks council, work stoppageCompany Employees or other collective group of Company Employees, strikeconsultants or contractors has made a demand for recognition or certification with respect to the Company, investigation by and there are no representation or certification proceedings or applications seeking a representation or certification proceeding pending or, to the Knowledge of the Company, threatened in writing to be brought or filed before any Governmental Authority, involving the Company. To the Knowledge of the Company, (i) there is and, prior to the date hereof, has been, no employee union organizing activities among any Company Employee or group of the Company currently intends to terminate his Employees or her employment with the Company and (ii) no employee of the Company has received an offer to join a business that is competitive with the Company Business.
(e) The Company is in compliance with the requirements of the Immigration Reform Control Act of 1986 and has a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each any of its employees.
(f) The Company has not been a party to any Action, consultants or received written notice of any threatened Action, in which the Company was, or is, alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) contractors. There is no pending, or to the Knowledge of the Company, threatenedthreatened work stoppage, and for lockout, labor grievance, arbitration, labor dispute, slowdown or labor strike against or affecting the four (4) years the Company has not received notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years the Company has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable LawsCompany.
(he) In the past two (2) years, there the Company has been no not engaged in any “mass layoff,” “employment loss,” or “plant closing” as defined by the Workers Adjustment and Retraining Notification Act (the “WARN Act or any other Law in respect of the Company and the Company has not been affected by any transaction Act”) or engaged in any lay-offs layoffs or employment terminations sufficient in number numbers to trigger application of any such Lawapplicable state or local Law similar to the WARN Act.
(if) To Except as set forth on Schedule 3.16(f) of the Company Disclosure Letter, no officer or Company Employee at the level of manager or higher, and no independent contractor of the Company with annual remuneration from the Company of at least $150,000, has disclosed to the Company in writing any plans to terminate his or her employment or relationship with the Company.
(g) The Company has not received written notice from any Governmental Authority responsible for the enforcement of labor or employment Law regarding an intent to conduct an investigation of the Company with respect to or relating to compliance with or an alleged violation or breach of any applicable labor or employment Law and, to the Knowledge of the Company, no such investigation of the Company by such a Governmental Authority is in progress.
(h) The Company has complied in all material respects with applicable Law regarding retaining U.S. Citizenship and Immigration Services Form I-9 (Employment Eligibility Verification) and all other records, documents, or other papers that are required to be retained with Form I-9 by the Company, including E-Verify reports, that it has in its records for each Company Employee located in the United States, and the Company has made available such documentation to Acquiror.
(i) Since the Lookback Date, the Company has not received any “cease and desist” letter or similar written communication alleging that any Company Employee, leased employee or independent contractor is performing any job duties or engaging in other activities on behalf of the Company is in violation of (i) that would violate any term of employment, non-competition, non-solicitation, non-disclosure, or other similar agreement between such individual and any employment or independent contractor Contract with the Company or (ii) any term of any other Contract former employer or any restrictive covenant relating to the right of any such employee or independent contractor to be employed by or to render services to the Company or to use Proprietary Information of others. The employment of any employee or engagement of any independent contractor by the Company does not subject them to any Liability to any third partyapplicable Law.
(j) Schedule 3.17(j) of the The Company Disclosure Letter sets forth a true, complete has effectuated any required COVID-19 safety policies and correct list of every Company Employee Plan and each Company Employee Agreement (each, a “Company Benefit Arrangement” and collectively, the “Company Benefit Arrangements”).
(k) True, complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered to Parent: (i) all documents embodying or governing such Company Benefit Arrangement and any funding medium for the Company Benefit Arrangement; (ii) the most recently filed IRS Form 5500; (iii) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; and (iv) all non-routine correspondence to and from any state or federal agency.
(l) No Company Benefit Arrangement is intended to qualify under Section 401(a) of the Code.
(m) (i) Each Company Benefit Arrangement is, and has been operated protocols in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with all applicable COVID-19 Orders. The Company has not received any written complaints from any current Company Employees regarding any failure of the Company to comply with applicable Laws and regulations and with its termsCOVID-19 Orders regarding worker safety.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Revelyst, Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 of the Company Disclosure Letter accurately lists all current employees of the Company and its Subsidiaries as of the Agreement Date, and for each such employee, his or her: (i) job positionposition or title, (ii) annualized base salary or houly wage (as applicable), (iii) annual commission opportunity or bonus potential, (iv) classification as full-time, part-time time, temporary or seasonal, (iiiv) classification as exempt or non-exempt under applicable state, federal or foreign overtime regulations, (ivvi) accrued but unused vacation or paid- time offvacation, (v) average hours of work per week, (vivii) visa type (if any), (viiviii) commencement date of employment with the CompanyCompany and its Subsidiaries, (viiiix) work location, (ixx) severance entitlements, if any, and (xxi) leave status (including anticipated return to work date). Each , and (xii) the total amount of bonus, severance, retention, change in control and/or other amounts to be paid to such employee classified by at the Company as exempt earns Closing or otherwise in excess of connection with the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wagetransactions contemplated hereby. Schedule 3.17(a)-2 of the Company Disclosure Letter accurately lists all individual independent contractors contractors, consultants, and leased workers of the Company and its Subsidiaries as of the Agreement DateDate (“Contingent Workers”), and for each such independent contractorContingent Worker, his or her: (A) terms of compensation, (B) total 2018 fee or compensation and expected 2019 compensationarrangements, (C) commencement date with the Company or any Affiliate of the Company, (D) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third party.
(b) The Company has and its Subsidiaries have correctly classified and paid employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and other Laws. All employees of the Company and its Subsidiaries are, and have been since their respective start of employment by the CompanyCompany or any of its Subsidiaries, legally permitted to be employed by the Company or such Subsidiary in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All independent contractors providing services to the Company and its Subsidiaries have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Neither the Company does not nor any of its Subsidiaries have any employment or consulting Contracts currently in effect that are not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of Proprietary Information or assignment of inventions).
(c) The Company and each of its ERISA AffiliatesSubsidiaries: (i) are, and at all times have been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, discrimination, harassment, retaliation, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor CodeLaw, (ii) have withheld, paid and reported all amounts required by Law or by Contract to be withheld, paid and reported with respect to compensation, wages, salaries and other payments to employees or independent contractors of the CompanyCompany or any of its Subsidiaries, (iii) are not liable for any arrears of wages or any material Taxes or any penalty for failure to comply with any Law, and (iv) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or any other applicable social insurance, or other benefits or obligations for employees of the Company and its Subsidiaries (other than routine payments to be made in the Ordinary Course of Business). There are no pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Affiliates under any worker’s workers’ compensation policy or long-term disability policy.
(d) The Neither the Company nor any of its Subsidiaries is not a party to or currently negotiating any collective bargaining or similar agreement with any labor union or organization, nor are any organized groups of its employees represented by any labor union. There is no, and in the past three (3) years there has been no pending, or to the Company’s Knowledge, threatened, labor dispute, work slowdown, work stoppage, strike, investigation by a Governmental Authority, involving the CompanyCompany or any of its Subsidiaries. To the Knowledge of the Company, (i) no employee of the Company or any of its Subsidiaries currently intends to terminate his or her employment with the Company or such Subsidiary and (ii) no employee of the Company or any of its Subsidiaries has received an offer to join a business that is may be competitive with the Company Business.
(e) The Company is and its Subsidiaries are in compliance with the requirements of the Immigration Reform Control Act of 1986 and has have a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each of its employees.
(f) The Neither the Company nor any of its Subsidiaries is, or has not been within the past four (4) years, a party to any Action, or received written notice of any threatened Action, in which the Company was, or is, any of its Subsidiaries is alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, classification or workers as independent contractors, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) There is no pendingpending or, or to the Knowledge of the Company, threatened, and for the four (4) years the Company has not received notice of any, threatened investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for during the past four (4) years neither the Company nor any of its Subsidiaries has received notice of any such investigation or audit. For the past three (3) years years, neither the Company nor any Subsidiaries has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable Laws.
(h) In the past two (2) years, there has been no “mass layoff,” “employment loss,” or “plant closing” as defined by the WARN Act or any other Law in respect of the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has not been affected by any transaction or engaged in any lay-offs or employment terminations sufficient in number to trigger application of any such Law.
(i) To the Knowledge of the Company, no employee or independent contractor of the Company or any of its Subsidiaries is in violation of (i) any term of any employment or independent contractor Contract with the Company or (ii) any term of any other Contract or any restrictive covenant relating to the right of any such employee or independent contractor to be employed by or to render services to the Company or any of its Subsidiaries or to use Proprietary Information of others. The To the Knowledge of the Company, the employment of any employee or engagement of any independent contractor by the Company or any of its Subsidiaries does not subject them to any Liability to any third party.
(j) All employees of the Company and its Subsidiaries are employed at will. For the avoidance of doubt, an employee is considered to be employed at will if he or she is not employed for a definite period of time and his or her employment may be terminated at any time with or without notice and with or without cause.
(k) Within the past four (4) years, neither the Company nor any of its Subsidiaries has been a party to a settlement agreement with a current or former employee or independent contractor that relates primarily to allegations of sexual harassment or sexual misconduct. Within the past four (4) years, to the Knowledge of the Company, no allegations of sexual harassment or sexual misconduct have been made against any officer, director or employee of the Company or any of its Subsidiaries in his or her capacity as an officer, director or employee.
(l) Schedule 3.17(j3.17(l) of the Company Disclosure Letter sets forth a true, complete and correct list of every Company Employee Plan and each Company Employee Agreement (each, a “Company Benefit Arrangement” and collectively, the “Company Benefit Arrangements”).
(km) True, complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered made available to Parent: (i) all documents embodying or governing such Company Benefit Arrangement and any funding medium for the Company Benefit Arrangement; (ii) the most recent IRS determination or opinion letter; (iii) the most recently filed IRS Form 5500; (iiiiv) the most recent actuarial valuation report; (v) the most recent summary plan description (or other descriptions provided to employees) and all summaries of material modifications related thereto; and (ivvi) all non-routine correspondence to and from any state or federal agency.
(ln) No Each Company Benefit Arrangement that is intended to qualify under Section 401(a) of the CodeCode is the subject of a favorable determination or approval letter from the IRS, or may rely on an opinion or advisory letter issued by the IRS with respect to a prototype or volume submitter plan adopted in accordance with the requirements for such reliance, and, to the Knowledge of the Company, no event or omission has occurred that would cause any such Company Benefit Arrangement to lose such qualification or require action under the IRS Employee Plans Compliance Resolution System program in order to maintain such qualification.
(m) (io) Each Company Benefit Arrangement is, and has been operated in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with applicable Laws and regulations and with its terms. No litigation or governmental administrative proceeding or audit (other than those relating to routine claims for benefits, appeals of such claims and domestic relations order proceedings) is pending or, to the Knowledge of the Company, threatened with respect to any Company Benefit Arrangement, and, to the Knowledge of the Company, there is no reasonable basis for any such litigation or proceeding. All payments and/or contributions required to have been made by the Company with respect to all Company Benefit Arrangements either have been made or have been accrued in accordance with the terms of the applicable Company Benefit Arrangement and applicable Law.
(p) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, or been required to contribute to (i) any employee benefit plan that is or was subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA, (ii) a Multiemployer Plan, (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any “multiple employer plan” (within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code), or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA), and neither the Company nor any ERISA Affiliate has ever incurred any Liability under Title IV of ERISA that has not been paid in full.
(q) None of the Company Benefit Arrangements provide health care or any other welfare benefits (within the meaning of Section 3(1) of ERISA) to any employees after their employment is terminated (other than (i) as required by applicable Law, including Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and similar state Law, (ii) coverage through the end of the month of termination of employment or service, (iii) disability benefits attributable to disabilities occurring at or prior to termination of employment or service, and (iv) conversion rights) and neither the Company nor any of its Subsidiaries has promised to provide such post-termination benefits.
(r) Each Company Employee Plan may be amended, terminated, or otherwise modified by the Company to the greatest extent permitted by applicable Law. Neither the Company nor any of its ERISA Affiliates has announced its intention to modify or terminate any Company Benefit Arrangement or adopt any arrangement or program which, once established, would come within the definition of a Company Benefit Arrangement. Each asset held under each Company Benefit Arrangement may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability other than ordinary administrative expenses.
(s) All Company Employee Plans subject to the laws of any jurisdiction outside of the United States for the benefit of employees or other service providers of the Company (each, a “Company Foreign Plan”): (i) are in compliance in all material respects with their terms and the applicable provisions of laws and regulations regarding employee benefits, mandatory contributions and retirement plans of each jurisdiction applicable to such Company Foreign Plan, (ii) if they are intended to qualify for special Tax treatment, meet all material requirements for such treatment, and (iii) if they are intended to be funded and/or book-reserved, are funded and/or book reserved, as appropriate, based upon reasonable actuarial or accounting assumptions.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sumo Logic, Inc.), Agreement and Plan of Reorganization (Sumo Logic, Inc.)
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 3.16(a) of the Company Disclosure Letter accurately lists sets forth a true, correct and complete listing of all current employees of the Company (collectively, the “Company Employees”), all individuals currently performing services for and classified as independent contractors of the Company, and all current leased employees (as defined in Code Section 414(n)) of the Company, in each case, as of the Agreement Datedate hereof, and for including each such employeePerson’s name, his job title or her: (i) function and job positionlocation, (ii) classification as full-timehire date, full- or part-time or seasonalstatus, (iii) classification as exempt or non-exempt status under the Fair Labor Standards Act (the “FLSA”), as well as a true, correct and complete listing of his or her current base salary or wage rate payable by the Company, the target amount of any annual incentive compensation applicable stateto such Person, federal or foreign overtime regulations, (iv) the amount of accrued but unused vacation or paid- time and/or paid time off, (v) average hours of work per weekin each case, (vi) visa type (if any), (vii) commencement date of employment with the Company, (viii) work location, (ix) severance entitlements, if any, and (x) leave status (including anticipated return to work date). Each employee classified by the Company as exempt earns in excess of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wage. Schedule 3.17(a)-2 of the Company Disclosure Letter accurately lists all independent contractors of the Company as of the Agreement Datedate hereof, and for each such independent contractor, his or her: (A) terms of compensation, (B) total 2018 compensation and expected 2019 compensation, (C) commencement date with the Company or any Affiliate of the Company, (D) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third partyEmployee’s current leave status.
(b) The Company is, and since the Lookback Date has correctly classified been, in compliance, in all material respects, with all applicable Laws relating to labor, employment and paid employees as exempt employees fair employment practices, including, provisions relating to hiring, discharge and/or terms and nonexempt employees conditions of employment, discrimination in employment (including hiring), worker classification under the Fair Labor Standards Act FLSA and other applicable state and local Laws. All employees , wages and hours, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation employee leave issues, labor relations, unemployment insurance, overtime compensation, child labor, hiring, promotion and termination of employees, employee privacy, data protection, working conditions, meal and break periods, employment eligibility verification, affirmative action, employment and reemployment rights of members of uniformed services, secondment, civil rights, occupational safety and health, work visas and/or employment authorization (including the Company areImmigration Reform and Control Act), and have been is not engaged in any unfair labor practice. With respect to any Relevant Service provider engaged since their respective start of employment by the CompanyLookback Date, legally permitted to be employed by the Company in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All independent contractors providing services to the Company have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Company does not have any employment material Liability with respect to the misclassification of Relevant Service Providers as independent contractors, or consulting Contracts currently in effect that are not terminable at will with respect to the misclassification of employees as exempt versus non-exempt. In the last two (other than agreements with 2) years, no written allegations of sexual harassment have been made to the sole purpose Company against any current or former (i) officer of providing for the confidentiality Company or (ii) employee of Proprietary Information or assignment of inventions)the Company.
(c) The Company and each of its ERISA Affiliates: (i) are, and at all times have been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor Code, (ii) have withheld, paid and reported has withheld all amounts required by applicable Law or as otherwise directed by Contract to be withheld, paid and reported with respect to compensation, withheld from the wages, salaries salaries, and other payments to employees or the Company Employees and its independent contractors of the Company, (iii) are and leased employees; and is not liable for any arrears of wages wages, compensation, taxes, penalties or any Taxes or any penalty other sums for failure to comply with any Lawof the foregoing. The Company has paid in full to all Company Employees all wages, salaries, commissions, bonuses, accrued overtime, vacation pay and/or holiday pay, benefits and (iv) are not liable for any payment other compensation due to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority such Company Employees, has made required social security contributions with respect to unemployment compensation benefitseach Company Employee, social security and has paid in full to all independent contractors and consultants all remuneration due to or any other applicable social insurance, or other benefits or obligations for employees on behalf of the Company such independent contractors and consultants (other than routine payments to be made in accrued bonuses reflected on the Ordinary Course of BusinessCompany Balance Sheet). There are no Actions concerning the employment, or termination thereof, of any of the Company Employees, and no such Action is pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Affiliates under any worker’s compensation policy or long-term disability policythreatened.
(d) The Company is not a party to or currently negotiating bound by any labor agreement or collective bargaining agreement, work rules or similar practices, or any other labor-related agreement or arrangement with any labor union or union, labor organization, nor or works council, and to the Knowledge of the Company, and no employees, consultants or contractors are any organized groups of its employees represented by any a labor union. There is no, and in the past three (3) years there has been no pending, labor organization or works council with respect to their employment or provision of services to the Company’s Knowledge, threatened. No labor union, labor disputeorganization, work slowdownworks council, work stoppageCompany Employees or other collective group of Company Employees, strikeconsultants or contractors has made a demand for recognition or certification with respect to the Company, investigation by and there are no representation or certification proceedings or applications seeking a representation or certification proceeding pending or, to the Knowledge of the Company, threatened in writing to be brought or filed before any Governmental Authority, involving the Company. To the Knowledge of the Company, (i) there is and, prior to the date hereof, has been, no employee union organizing activities among any Company Employee or group of the Company currently intends to terminate his Employees or her employment with the Company and (ii) no employee of the Company has received an offer to join a business that is competitive with the Company Business.
(e) The Company is in compliance with the requirements of the Immigration Reform Control Act of 1986 and has a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each any of its employees.
(f) The Company has not been a party to any Action, consultants or received written notice of any threatened Action, in which the Company was, or is, alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) contractors. There is no pending, or to the Knowledge of the Company, threatenedthreatened work stoppage, and for lockout, labor grievance, arbitration, labor dispute, slowdown or labor strike against or affecting the four (4) years the Company has not received notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years the Company has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable LawsCompany.
(he) In the past two (2) years, there the Company has been no not engaged in any “mass layoff,” “employment loss,” or “plant closing” as defined by the Workers Adjustment and Retraining Notification Act (the “WARN Act or any other Law in respect of the Company and the Company has not been affected by any transaction Act”) or engaged in any lay-offs layoffs or employment terminations sufficient in number numbers to trigger application of any such Lawapplicable state or local Law similar to the WARN Act.
(if) To Except as set forth on Schedule 3.16(f) of the Company Disclosure Letter, no officer or Company Employee at the level of manager or higher, and no independent contractor of the Company with annual remuneration from the Company of at least $150,000, has disclosed to the Company in writing any plans to terminate his or her employment or relationship with the Company.
(g) The Company has not received written notice from any Governmental Authority responsible for the enforcement of labor or employment Law regarding an intent to conduct an investigation of the Company with respect to or relating to compliance with or an alleged violation or breach of any applicable labor or employment Law and, to the Knowledge of the Company, no such investigation of the Company by such a Governmental Authority is in progress.
(h) The Company has complied in all material respects with applicable Law regarding retaining U.S. Citizenship and Immigration Services Form I-9 (Employment Eligibility Verification) and all other records, documents, or other papers that are required to be retained with Form I-9 by the Company, including E-Verify reports, that it has in its records for each Company Employee located in the United States, and the Company has made available such documentation to Acquiror.
(i) Since the Lookback Date, the Company has not received any “cease and desist” letter or similar written communication alleging that any Company Employee, leased employee or independent contractor is performing any job duties or engaging in other activities on behalf of the Company is in violation of (i) that would violate any term of employment, non-competition, non-solicitation, non-disclosure, or other similar agreement between such individual and any employment or independent contractor Contract with the Company or (ii) any term of any other Contract former employer or any restrictive covenant relating to the right of any such employee or independent contractor to be employed by or to render services to the Company or to use Proprietary Information of othersapplicable Law. The employment of any employee or engagement of any independent contractor by the Company does not subject them to any Liability to any third party.
(j) Schedule 3.17(j) of the The Company Disclosure Letter sets forth a true, complete has effectuated any required COVID-19 safety policies and correct list of every Company Employee Plan and each Company Employee Agreement (each, a “Company Benefit Arrangement” and collectively, the “Company Benefit Arrangements”).
(k) True, complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered to Parent: (i) all documents embodying or governing such Company Benefit Arrangement and any funding medium for the Company Benefit Arrangement; (ii) the most recently filed IRS Form 5500; (iii) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; and (iv) all non-routine correspondence to and from any state or federal agency.
(l) No Company Benefit Arrangement is intended to qualify under Section 401(a) of the Code.
(m) (i) Each Company Benefit Arrangement is, and has been operated protocols in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with all applicable COVID-19 Orders. The Company has not received any written complaints from any current Company Employees regarding any failure of the Company to comply with applicable Laws and regulations and with its termsCOVID-19 Orders regarding worker safety.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Outdoor Products Spinco Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 3.16(a) of the Company Disclosure Letter accurately lists sets forth a true, correct and complete listing of all current employees of the Company (collectively, the “Company Employees”), all individuals currently performing services for and classified as independent contractors of the Company, and all current leased employees (as defined in Code Section 414(n)) of the Company, in each case, as of the Agreement Datedate hereof, and for including each such employeePerson’s name, his job title or her: (i) function and job positionlocation, (ii) classification as full-timehire date, full- or part-time or seasonalstatus, (iii) classification as exempt or non-exempt status under the Fair Labor Standards Act (the “FLSA”), as well as a true, correct and complete listing of his or her current base salary or wage rate payable by the Company, the target amount of any annual incentive compensation applicable stateto such Person, federal or foreign overtime regulations, (iv) the amount of accrued but unused vacation or paid- time and/or paid time off, (v) average hours of work per weekin each case, (vi) visa type (if any), (vii) commencement date of employment with the Company, (viii) work location, (ix) severance entitlements, if any, and (x) leave status (including anticipated return to work date). Each employee classified by the Company as exempt earns in excess of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wage. Schedule 3.17(a)-2 of the Company Disclosure Letter accurately lists all independent contractors of the Company as of the Agreement Datedate hereof, and for each such independent contractor, his or her: (A) terms of compensation, (B) total 2018 compensation and expected 2019 compensation, (C) commencement date with the Company or any Affiliate of the Company, (D) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third partyEmployee’s current leave status.
(b) The Company is, and since the Lookback Date has correctly classified been, in compliance, in all material respects, with all applicable Laws relating to labor, employment and paid employees as exempt employees fair employment practices, including, provisions relating to hiring, discharge and/or terms and nonexempt employees conditions of employment, discrimination in employment (including hiring), worker classification under the Fair Labor Standards Act FLSA and other applicable state and local Laws. All employees , wages and hours, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation employee leave issues, labor relations, unemployment insurance, overtime compensation, child labor, hiring, promotion and termination of employees, employee privacy, data protection, working conditions, meal and break periods, employment eligibility verification, affirmative action, employment and reemployment rights of members of uniformed services, secondment, civil rights, occupational safety and health, work visas and/or employment authorization (including the Company areImmigration Reform and Control Act), and have been is not engaged in any unfair labor practice. With respect to any Relevant Service provider engaged since their respective start of employment by the CompanyLookback Date, legally permitted to be employed by the Company in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All independent contractors providing services to the Company have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Company does not have any employment material Liability with respect to the misclassification of Relevant Service Providers as independent contractors, or consulting Contracts currently in effect that are not terminable at will with respect to the misclassification of employees as exempt versus non-exempt. In the last two (other than agreements with 2) years, no written allegations of sexual harassment have been made to the sole purpose Company against any current or former (i) officer of providing for the confidentiality Company or (ii) employee of Proprietary Information or assignment of inventions)the Company.
(c) The Company and each of its ERISA Affiliates: (i) are, and at all times have been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor Code, (ii) have withheld, paid and reported has withheld all amounts required by applicable Law or as otherwise directed by Contract to be withheld, paid and reported with respect to compensation, withheld from the wages, salaries salaries, and other payments to employees or the Company Employees and its independent contractors of the Company, (iii) are and leased employees; and is not liable for any arrears of wages wages, compensation, taxes, penalties or any Taxes or any penalty other sums for failure to comply with any Law, and (iv) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or any other applicable social insurance, or other benefits or obligations for employees of the Company (other than routine payments to be made in the Ordinary Course of Business)foregoing. There are no pending or, to the Knowledge of the The Company, threatened Actions against the Company or any of its Affiliates under any worker’s compensation policy or long-term disability policy.
(d) The Company is not a party to or currently negotiating bound by any labor agreement or collective bargaining agreement, work rules or similar practices, or any other labor-related agreement or arrangement with any labor union or union, labor organization, nor or works council, and to the Knowledge of the Company, and no employees, consultants or contractors are any organized groups of its employees represented by any a labor union. There is no, and in the past three (3) years there has been no pending, labor organization or works council with respect to their employment or provision of services to the Company’s Knowledge, threatened. No labor union, labor disputeorganization, work slowdownworks council, work stoppageCompany Employees or other collective group of Company Employees, strikeconsultants or contractors has made a demand for recognition or certification with respect to the Company, investigation by and there are no representation or certification proceedings or applications seeking a representation or certification proceeding pending or, to the Knowledge of the Company, threatened in writing to be brought or filed before any Governmental Authority, involving the Company. To the Knowledge of the Company, (i) there is and, prior to the date hereof, has been, no employee union organizing activities among any Company Employee or group of the Company currently intends to terminate his Employees or her employment with the Company and (ii) no employee of the Company has received an offer to join a business that is competitive with the Company Business.
(e) The Company is in compliance with the requirements of the Immigration Reform Control Act of 1986 and has a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each any of its employees.
(f) The Company has not been a party to any Action, consultants or received written notice of any threatened Action, in which the Company was, or is, alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) contractors. There is no pending, or to the Knowledge of the Company, threatenedthreatened work stoppage, and for lockout, labor grievance, arbitration, labor dispute, slowdown or labor strike against or affecting the four (4) years the Company has not received notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years the Company has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable LawsCompany.
(he) In the past two (2) years, there the Company has been no not engaged in any “mass layoff,” “employment loss,” or “plant closing” as defined by the Workers Adjustment and Retraining Notification Act (the “WARN Act or any other Law in respect of the Company and the Company has not been affected by any transaction Act”) or engaged in any lay-offs layoffs or employment terminations sufficient in number numbers to trigger application of any such Lawapplicable state or local Law similar to the WARN Act.
(if) To Except as set forth on Schedule 3.16(f) of the Company Disclosure Letter, no officer or Company Employee at the level of manager or higher, and no independent contractor of the Company with annual remuneration from the Company of at least $150,000, has disclosed to the Company in writing any plans to terminate his or her employment or relationship with the Company.
(g) The Company has not received written notice from any Governmental Authority responsible for the enforcement of labor or employment Law regarding an intent to conduct an investigation of the Company with respect to or relating to compliance with or an alleged violation or breach of any applicable labor or employment Law and, to the Knowledge of the Company, no such investigation of the Company by such a Governmental Authority is in progress. (h) The Company has complied in all material respects with applicable Law regarding retaining U.S. Citizenship and Immigration Services Form I-9 (Employment Eligibility Verification) and all other records, documents, or other papers that are required to be retained with Form I-9 by the Company, including E-Verify reports, that it has in its records for each Company Employee located in the United States, and the Company has made available such documentation to Acquiror.
(i) Since the Lookback Date, the Company has not received any “cease and desist” letter or similar written communication alleging that any Company Employee, leased employee or independent contractor is performing any job duties or engaging in other activities on behalf of the Company is in violation of (i) that would violate any term of employment, non-competition, non-solicitation, non-disclosure, or other similar agreement between such individual and any employment or independent contractor Contract with the Company or (ii) any term of any other Contract former employer or any restrictive covenant relating to the right of any such employee or independent contractor to be employed by or to render services to the Company or to use Proprietary Information of others. The employment of any employee or engagement of any independent contractor by the Company does not subject them to any Liability to any third partyapplicable Law.
(j) Schedule 3.17(j) of the Company Disclosure Letter sets forth a true, complete and correct list of every Company Employee Plan and each Company Employee Agreement (each, a “Company Benefit Arrangement” and collectively, the “Company Benefit Arrangements”).
(k) True, complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered to Parent: (i) all documents embodying or governing such Company Benefit Arrangement and any funding medium for the Company Benefit Arrangement; (ii) the most recently filed IRS Form 5500; (iii) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; and (iv) all non-routine correspondence to and from any state or federal agency.
(l) No Company Benefit Arrangement is intended to qualify under Section 401(a) of the Code.
(m) (i) Each Company Benefit Arrangement is, and has been operated in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with applicable Laws and regulations and with its terms.
Appears in 1 contract
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 The Company has made available to Parent a list of the Company Disclosure Letter accurately lists all current employees of the Company as of the Agreement Date, and for each such employee, his or her: (i) job position, (ii) classification as full-time, part-time or seasonal, (iii) classification as exempt or non-exempt under applicable state, federal or foreign overtime regulationsexempt, (iv) hourly rate of compensation or base salary (as applicable), (v) total 2016 compensation and expected 2017 compensation, (vi) actual incentive compensation for 2016 (commission and/or bonus, as applicable) and target incentive compensation for 2017 (commission and/or bonus, as applicable), (vii) any other compensation or allowance, (viii) vacation accrual rate, (ix) accrued but unused vacation or paid- time offvacation, (vx) average hours of work per weekweek (for non-exempt and part-time employees), (vixi) visa type (if any), (viixii) commencement date of employment with the Company, (viiixiii) work location, (ix) severance entitlements, if any, and (xxiv) leave status (including anticipated return to work date). Each employee classified by the The Company as exempt earns in excess has made available to Parent a list of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wage. Schedule 3.17(a)-2 of the Company Disclosure Letter accurately lists all independent contractors of the Company as of the Agreement Date, and for each such independent contractor, his or her: (A) terms total 2016 compensation and expected 2017 compensation (including all payments or benefits of compensationany type received to date), (B) total 2018 compensation and expected 2019 compensation, (C) commencement date with the Company or any Affiliate of the Company, (DC) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (GD) whether engaged directly or through a third party.
(b) The To the Knowledge of the Company, (i) Company has correctly classified and paid employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and other Laws. All ; (ii) all employees of the Company are, and have been since their respective start of employment by the Company, legally permitted to be employed by the Company in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All ; and (iii) all independent contractors providing services to the Company have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Company does not have any employment or consulting Contracts currently in effect that are not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of Proprietary Information or assignment of inventions).
(c) The Company and each of its ERISA Affiliates: (i) are, and at all times have been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, collective bargaining, including the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor CodeLaw, (ii) have withheld, paid and reported all amounts required by Law or by Contract to be withheld, paid and reported with respect to compensation, wages, salaries and other payments to employees or independent contractors consultants of the Company, (iii) are not liable for any arrears of wages or any Taxes or any penalty for failure to comply with any Law, and (iv) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or any other applicable social insurance, or other benefits or obligations for employees of the Company (other than routine payments to be made in the Ordinary Course of Business). There are no pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Affiliates under any worker’s compensation policy or long-term disability policy.
(d) The Company is not now, nor has it ever been, subject to a party union organizing effort. The Company is not subject to or currently negotiating any collective bargaining agreement with respect to any of its employees, subject to any other Contract with any trade or labor union, employees’ association or similar agreement with any labor union or organization, nor are or subject to any organized groups of its employees represented by any current labor union. There is no, and in the past three (3) years there has been no pending, or to the Company’s Knowledge, threatened, labor dispute, work slowdown, work stoppage, strike, investigation by a Governmental Authority, involving the Companydisputes. To the Knowledge of the Company, (i) no employee of the Company currently intends to terminate his or her employment with the Company and (ii) no employee of the Company has received an offer to join a business that is may be competitive with the Company Business.
(e) The Company is in compliance with the requirements of the Immigration Reform Control Act of 1986 and has a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each of its employees.
(f) The Company has not been a party to any Action, or received written notice of any threatened Action, in which the Company was, or is, alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) There is no pending, or to the Knowledge of the Company, threatened, and for the four (4) years the Company has not received notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years the Company has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable Laws.
(hf) In the past two years, there has been no “mass layoff,” “employment loss,” or “plant closing” as defined by the WARN Act or any other Law in respect of the Company and the Company has not been affected by any transaction or engaged in any lay-offs or employment terminations sufficient in number to trigger application of any such Law.
(ig) To the Knowledge of the Company, no employee or independent contractor consultant of the Company is in violation of (i) any term of any employment or independent contractor consulting Contract with the Company or (ii) any term of any other Contract or any restrictive covenant relating to the right of any such employee or independent contractor consultant to be employed by or to render services to the Company or to use Proprietary Information of others. The , and the employment of any employee or engagement of any independent contractor consultant by the Company does not subject them to any Liability to any third party.
(j) Schedule 3.17(j) of the Company Disclosure Letter sets forth a true, complete and correct list of every Company Employee Plan and each Company Employee Agreement (each, a “Company Benefit Arrangement” and collectively, the “Company Benefit Arrangements”).
(k) True, complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered to Parent: (i) all documents embodying or governing such Company Benefit Arrangement and any funding medium for the Company Benefit Arrangement; (ii) the most recently filed IRS Form 5500; (iii) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; and (iv) all non-routine correspondence to and from any state or federal agency.
(l) No Company Benefit Arrangement is intended to qualify under Section 401(a) of the Code.
(m) (i) Each Company Benefit Arrangement is, and has been operated in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with applicable Laws and regulations and with its terms.
Appears in 1 contract
Samples: Merger Agreement (Ellie Mae Inc)
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 Section 2.17(a)(i) of the Company Disclosure Letter accurately lists Schedule is a complete and correct list, to the extent permitted by applicable Law, of all current employees of the Company and its Subsidiaries as of the Agreement Date, and for each such employee, his or her: (i1) job positionposition or title, (ii2) annualized base salary or hourly wage (as applicable and as permitted to be disclosed under applicable law), (3) classification as full-time, part-time time, or seasonaltemporary, (iii4) classification as exempt or non-exempt under applicable state, federal or foreign overtime regulations, (iv) accrued but unused vacation or paid- time off, (v) average hours of work per week, (vi) visa type (if any), (vii5) commencement date of employment with the Company, (viii6) visa type (if any)and (7) work location. Section 2.17(a)(ii) of the Disclosure Schedule is a complete and correct list of all individual independent contractors, (ix) severance entitlements, if anyconsultants, and (x) leave status (including anticipated return to work date). Each employee classified by the Company as exempt earns in excess of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wage. Schedule 3.17(a)-2 leased workers of the Company Disclosure Letter accurately lists all independent contractors of the Company and its Subsidiaries as of the Agreement Date, and for each such independent contractorindividual, his or her: (A) terms of compensationfee or compensation arrangements, (B) total 2018 compensation and expected 2019 compensation, (C) commencement date with the Company or any Affiliate of the Company, including the Company’s Subsidiaries, (DC) service location; and (ED) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third party.
(b) The Since the Delaware Conversion, the Company has and its Subsidiaries, as the case may be, have, in all material respects, correctly classified and paid employees as exempt employees and nonexempt non-exempt employees under the Fair Labor Standards Act and other Laws. All To the Knowledge of the Company, all employees of the Company and its Subsidiaries, as the case may be, are, and have been since their respective start of employment by the CompanyCompany or one of its Subsidiaries, as the case may be, legally permitted to be employed by the Company or one of its Subsidiaries in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All independent contractors providing services to the Company or one of its Subsidiaries are and since the Delaware Conversion have been been, in all material respects, properly classified classified, treated and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The Neither the Company does not nor any of its Subsidiaries have any employment or consulting Contracts currently in effect that are not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of Proprietary Information or assignment of inventions).
(c) The Company Company, its Subsidiaries and each of its ERISA their respective Affiliates: (i) are, and at all times since the Delaware Conversion have been, in compliance in all material respects with all Laws (including any applicable COVID-19 Response Law) respecting employment, employment practices, terms and conditions of employment, discrimination, harassment, retaliation, employee safety health and safety, wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower lawsLaws, collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, 1996 and any similar provisions of state Law and all provisions of the California Labor CodeLaw, (ii) have have, since the Delaware Conversion, and withheld, paid and reported all amounts required by Law or by Contract to be withheld, paid and reported with respect to compensation, wages, salaries and other payments to employees or independent contractors of the CompanyCompany or any of its Subsidiaries, (iii) are not liable liable, in any material respect for any arrears of wages or any Taxes or any penalty for failure to comply with any Law, and (iv) are not liable liable, in any material respect, for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or any other applicable social insurance, or other benefits or obligations for employees of the Company or any of its Subsidiaries (other than routine payments to be made in the Ordinary Course of Business). There are no pending or, to the Knowledge of the Company, threatened Actions against the Company Company, any of its Subsidiaries or any of its their respective Affiliates under any worker’s compensation policy or long-term disability policy.
(d) The Neither the Company is not a nor any its Subsidiaries are party to or currently negotiating any collective bargaining or similar agreement with any labor union or organization, nor are any organized groups of its employees represented by any labor union. There is no, and in since the past three (3) years Delaware Conversion there has been no no, pending, or to the Company’s Knowledge, threatened, labor dispute, work slowdown, work stoppage, strike, investigation by a Governmental Authority, involving the CompanyCompany or any of its Subsidiaries. To the Knowledge of the Company, (i) no employee of material to the Company or any of its Subsidiaries currently intends to terminate his or her employment with the Company or the Subsidiary, as the case may be, and (ii) no employee of material to the Company or any of its Subsidiaries has received an offer to join a business that is may be competitive with the Company Business.
(e) The Company is and its Subsidiaries are each in compliance with the requirements of the Immigration Reform Control Act of 1986 and has a complete and accurate correct copy of U.S. Citizenship and Immigration Services Form I-9 for each of its employees.
(f) The Neither the Company has not nor any its Subsidiaries have since the Delaware Conversion been a party to any Action, or received written notice of any threatened Action, in which the Company wasor any of its Subsidiaries are, or iswere, alleged to have violated any Contract or Law in any material respect, relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, classification or workers as independent contractors, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) There is no pending, or and to the Knowledge of the Company, threatened, and for the four (4) years neither the Company has not nor of its Subsidiaries have since the Delaware Conversion received written notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years neither the Company has not nor any of its Subsidiaries have since the Delaware Conversion been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable Laws.
(h) In Since the past two yearsDelaware Conversion, there has been no “mass layoff,” “employment loss,” or “plant closing” as defined by the WARN Act or any other Law in respect of the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has not been affected by any transaction or engaged in any lay-offs or employment terminations sufficient in number to trigger application of any such Law.
(i) To the Knowledge Except as has been mandated by Governmental Authority, as of the CompanyAgreement Date, no employee or independent contractor of the Company is in violation has not had, any material direct workforce changes due to COVID-19 or applicable COVID-19 Response Law, including any actual terminations, layoffs, furloughs, shutdowns (whether voluntary or by order of (i) a Governmental Authority), or any term of changes to benefit or compensation programs, nor are any employment or independent contractor Contract with such changes currently contemplated. Neither the Company or (ii) its Subsidiaries have experienced any term of any other Contract or any restrictive covenant relating employment-related Liability with respect to the right of any such employee or independent contractor to be employed by or to render services to COVID-19 that has been material the Company or to use Proprietary Information of others. The employment of any employee or engagement of any independent contractor by the Company does not subject them to any Liability to any third partyand its Subsidiaries, taken as a whole.
(j) Schedule 3.17(j) of Neither the Company Disclosure Letter sets forth nor any of its Subsidiaries are subject to any affirmative action obligations under any Law, including, without limitation, Executive Order 11246, nor is the Company a truegovernment contractor or subcontractor for purposes of any Law with respect to the terms and conditions of employment, complete and correct list of every Company Employee Plan and each Company Employee Agreement (eachincluding, a “Company Benefit Arrangement” and collectivelywithout limitation, the “Company Benefit Arrangements”)Service Contracts Act or prevailing wage Laws.
(k) TrueNeither the Company nor any of its Subsidiaries have been a party to a settlement agreement with a current or former employee or independent contractor that relates primarily to allegations of sexual harassment or sexual misconduct. No allegations of sexual harassment or sexual misconduct have been made against any officer, director or employee of the Company or any of its Subsidiaries in his or her capacity as an officer, director or employee.
(l) Section 2.17(l) of the Disclosure Schedule sets forth a complete and correct list as of the Agreement Date of each material Company Benefit Arrangement.
(m) Complete and correct copies of the following documents, with respect to each Company Benefit Arrangement, where applicable, have previously been delivered made available to Parent: (i) all documents embodying or other governing such Company Benefit Arrangement (or for unwritten Company Benefit Arrangement a written description of the material terms of such arrangement) and any funding medium for the Company Benefit Arrangement; (ii) the most recent IRS determination or opinion letter; (iii) the most recently filed IRS Form 5500; (iiiiv) the most recent actuarial valuation report; (v) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; and (ivvi) all material non-routine correspondence to and from any state or federal agencyagency related to such Company Benefit Arrangement.
(ln) No Each Company Benefit Arrangement that is intended to qualify under Section 401(a) of the CodeCode is so qualified and has received a favorable determination or approval letter from the IRS with respect to such qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance, or has time remaining for application to the IRS for a determination of the qualified status of such Company Benefit Arrangement for any period for which such Company Benefit Arrangement would not otherwise be covered by an IRS determination and, to the Knowledge of the Company, no event or omission has occurred that would cause any Company Benefit Arrangement to lose such qualification or require such action under the IRS Employee Plans Compliance Resolution System in order to maintain such qualification or require corrective action to the IRS or Employee Plan Compliance Resolution System to maintain such qualification.
(m) (io) Each Company Benefit Arrangement is, is and has been operated in material compliance with applicable Laws and regulations and is and has been administered in all material respects in accordance with applicable Laws and regulations and with its termsterms including without limitation ERISA, the Code, and the Patient Protection and Affordable Care Act of 2010, as amended (the “Affordable Care Act”). No Company Benefit Arrangement is, or within the past six (6) years has been, the subject of an application or filing under a government sponsored amnesty, voluntary compliance, or similar program, or been the subject of any self-correction under any such program. No litigation or governmental administrative proceeding, audit or other proceeding or Action (other than those relating to routine claims for benefits) is pending or, to the Knowledge of the Company, threatened with respect to any Company Benefit Arrangement or any fiduciary or service provider thereof, and, to the Knowledge of the Company, there is no reasonable basis for any such litigation or proceeding. All payments and/or contributions required to have been timely made with respect to all Company Benefit Arrangements either have been made or have been accrued in accordance with the terms of the applicable Company Benefit Arrangement and applicable Law. Each Company Benefit Arrangement satisfies the minimum coverage, affordability and non-discrimination requirements under the Code. The Company and its Subsidiaries, as the case may be, are and have been in compliance with the Affordable Care Act and has made an offer of affordable minimum essential coverage to its respective employees in the manner contemplated under Section 4980H of the Code to the extent required to avoid the adverse Tax consequences thereunder, and the Company is not otherwise liable or responsible for any assessable payment, Taxes or penalties under Section 4980H of the Code or under the Affordable Care Act or in connection with requirements relating thereto.
(p) Neither the Company, any of its Subsidiaries, nor any of its ERISA Affiliates has ever maintained, contributed to, or been required to contribute or had any Liability with respect to, including on account of any ERISA Affiliate (whether contingent or otherwise), to (i) any employee benefit plan that is or was subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA, (ii) a Multiemployer Plan, (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA), and neither the Company, any of its Subsidiaries, nor any of its ERISA Affiliates has ever incurred any Liability under Title IV of ERISA that has not been paid in full.
(q) Neither the Company, any of its Subsidiaries, nor any ERISA Affiliate provides or has any obligation to provide health care or any other non-pension benefits to any employees (or their spouses, dependents, or beneficiaries) after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or similar state law) and neither the Company nor any of its Subsidiaries have ever promised to provide such post-termination benefits.
(r) Each Company Benefit Arrangement may be amended, terminated or otherwise modified (including cessation of participation) by the Company or any of its Subsidiaries, as the case may be, to the greatest extent permitted by applicable Law, including the elimination of any and all future benefit accruals thereunder and no employee communications or provision of any Company Benefit Arrangement has failed to effectively reserve the right of the Company, its Subsidiary, or the ERISA Affiliate to so amend, terminate or otherwise modify such Company Benefit Arrangement. Neither the Company, any of its Subsidiaries nor any of its ERISA Affiliates has announced its intention to modify or terminate any Company Benefit Arrangement or adopt any arrangement or program which, once established, would come within the definition of a Company Benefit Arrangement. Each asset held under each Company Benefit Arrangement may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability other than ordinary administration expenses. No Company Benefit Arrangement provides health or long-term disability benefits that are not fully insured through an insurance contract.
(s) No Company Benefit Arrangement is subject to the Laws of any jurisdiction outside the United States.
(t) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or upon occurrence of any additional event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer, director, consultant, independent contractor or other service provider of the Company, any of its Subsidiaries or any of its ERISA Affiliates; (ii) result in any “excess parachute payment” as defined in Section 280G of the Code, (iii) result in the forgiveness of any indebtedness; or (iv) limit the right of the Company, any of its Subsidiaries or any of its ERISA Affiliates to amend, merge, terminate or receive a reversion of assets from any Company Benefit Arrangement or related trust.
Appears in 1 contract
Samples: Merger Agreement (Ambarella Inc)
Employees, ERISA and Other Compliance. (a) Schedule 3.17(a)-1 3.15(a)-1 of the Company Disclosure Letter accurately lists all current employees of the each Company Person as of the Agreement Date, and for each such employee, his or her: (i) employing entity,(ii) job position, (iiiii) classification as full-time, part-time or seasonal, (iiiiv) classification as exempt or non-exempt under applicable state, federal or foreign overtime regulations, (ivv) hourly rate of compensation or base salary (as applicable), (vi) total 2018 compensation, (vii) target incentive compensation for 2019 (commission and/or bonus, as applicable), (viii) any other compensation or allowance, (ix) vacation accrual rate, (x) accrued but unused vacation or paid- time offvacation, (vxi) average hours of work per weekweek (for non-exempt and part-time employees), (vixii) visa type (if any), and (viixiii) commencement date of employment with the Company, (viii) work location, (ix) severance entitlements, if any, and (x) leave status (including anticipated return to work date). Each employee classified by the Company as exempt earns in excess of the minimum salary threshold for exemption and each non-exempt employee earns in excess of the applicable minimum wageor its Subsidiary. Schedule 3.17(a)-2 3.15(a)-2 of the Company Disclosure Letter accurately lists all individual independent contractors of the each Company Person as of the Agreement Date, and for each such individual independent contractor, his or her: (Ax) terms of compensation, (By) total 2018 compensation (including all payments or benefits of any type received to date), and expected 2019 compensation, (Cz) commencement date with the Company or any Affiliate of the Company, (D) service location; (E) description of services provided; (F) notice required to terminate the relationship, and (G) whether engaged directly or through a third partyits Subsidiary.
(b) The Except as set forth in Schedule 3.15(b) of the Company Disclosure Letter, each Company Person has correctly classified and paid employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and other Laws. All employees of the any Company are, and have been since their respective start of employment by the Company, Person are legally permitted to be employed by the such Company Person in the jurisdiction in which such employee is employed in their current job capacities for the maximum period permitted by Law. All individual independent contractors providing services to the any Company Person have been properly classified and paid as independent contractors for purposes of federal and applicable state Tax Laws, Laws applicable to employee benefits and other Laws. The No Company does not have Person has any employment or consulting Contracts currently in effect that are not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of Proprietary Information proprietary information or assignment of inventions).
(c) The No Company and each of its ERISA Affiliates: (i) arePerson is now, and at all times have or has it ever been, in compliance in all material respects with all Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, overtime pay, sick leave, payroll documents, equal opportunity, immigration compliance, occupational health and safety, termination or discharge, plant closing and mass layoff requirements, affirmative action, workers’ compensation, disability, unemployment compensation, whistleblower laws, subject to a union organizing effort. No Company Person is subject to any collective bargaining, the proper classification and treatment of employees as exempt or non-exempt and the proper classification and treatment of independent contractors, health care continuation requirements of COBRA, the requirements of the Family and Medical Leave Act of 1993, as amended, the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and any similar provisions of state Law and all provisions of the California Labor Code, (ii) have withheld, paid and reported all amounts required by Law or by Contract to be withheld, paid and reported bargaining agreement with respect to compensation, wages, salaries and other payments to employees or independent contractors of the Company, (iii) are not liable for any arrears of wages or any Taxes or any penalty for failure to comply with any Law, and (iv) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, social security or any other applicable social insurance, or other benefits or obligations for employees of the Company (other than routine payments to be made in the Ordinary Course of Business). There are no pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Affiliates under employees, subject to any worker’s compensation policy other Contract with any trade or long-term disability policy.
(d) The Company is not a party to or currently negotiating any collective bargaining labor union, employees’ association or similar agreement with any labor union or organization, nor are or subject to any organized groups of its employees represented by any current labor union. There is no, and in the past three (3) years there has been no pending, or to the Company’s Knowledge, threatened, labor dispute, work slowdown, work stoppage, strike, investigation by a Governmental Authority, involving the Companydisputes. To the Knowledge of the Company, (i) no employee of the any Company Person currently intends to terminate his or her employment with the any Company Person and (ii) no employee of the any Company Person has received an offer to join a business that is may be competitive with the Company BusinessBusiness which is currently open for acceptance.
(ed) The No Company is in compliance with the requirements of the Immigration Reform Control Act of 1986 and Person has a complete and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each of its employees.
(f) The Company has not been a party to any Action, or received written notice of any threatened Action, in which the any Company Person was, or is, alleged to have violated any Contract or Law relating to employment, including equal opportunity, discrimination, retaliation, harassment, immigration, wages, hours, unpaid compensation, classification of employees as exempt from overtime or minimum wage Laws, benefits, collective bargaining, the payment of social security and similar Taxes, occupational safety and health, and/or privacy rights of employees.
(g) There is no pending, or to the Knowledge of the Company, threatened, and for the four (4) years the Company has not received notice of any, investigation or audit by a Governmental Authority responsible for the enforcement of labor, immigration or employment regulations and, for the past three (3) years the Company has not been found by any Governmental Authority to have engaged in any unfair labor practice, as defined in the National Labor Relations Act (29 U.S.C. § 151 et seq.) or other applicable Laws.
(he) In the past two years, there has been no “mass layoff,” “employment loss,” or “plant closing” as defined by the WARN Act or any other Law in respect of the any Company and the Person nor has any Company has not Person been affected by any transaction or engaged in any lay-offs or employment terminations sufficient in number to trigger application of any such Law.
(if) To the Knowledge of the Company, no No employee or independent contractor individual consultant of the any Company Person is in material violation of (i) any term of any employment or independent contractor consulting Contract with the Company or (ii) any term of any other Contract or any restrictive covenant relating to the right of any such employee or independent contractor individual consultant to be employed by or to render services to the any Company Person or to use Proprietary Information trade secrets or proprietary information of others. The To the Knowledge of the Company, the employment of any employee or engagement of any independent contractor individual consultant by the any Company Person does not subject them it to any Liability to any third party.
(jg) Schedule 3.17(j3.15(g) of the Company Disclosure Letter sets forth a true, contains an accurate and complete and correct list as of every the Agreement Date of each Company Employee Plan and each Company Employee Agreement (eachcollectively, the “Company Benefit Arrangements” and each a “Company Benefit Arrangement” and collectivelywhich, for the “avoidance of doubt, do not include (i) the Offer Letters or (ii) any Company Employee Plans or Company Employee Agreements that are no longer in effect and do not otherwise have any continuing rights or obligations thereunder). Except with respect to the Cancelled Options and the Assumed Options, no Company Person intends to or has committed to establish or enter into any new Company Benefit Arrangements”Arrangement, or to modify or terminate any Company Benefit Arrangement (except to conform any such Company Benefit Arrangement to the requirements of any Law or the terms of this Agreement, in each case as previously disclosed to Parent in writing or as required by this Agreement).
(kh) True, The Company has made available to Parent: (i) correct and complete and correct copies of all documents establishing the following terms of each Company Benefit Arrangement, including all amendments thereto and all related trust documents, (ii) the most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or the Code in connection with each Company Benefit Arrangement, (iii) if any Company Benefit Arrangement is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Benefit Arrangement assets, (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA with respect to each Company Benefit Arrangement, where applicable, have previously been delivered to Parent: (iv) all documents embodying material written Contracts relating to each Company Benefit Arrangement to which a Company Person is a party, including administrative service agreements and group insurance contracts, (vi) all written materials prepared by any Company Person provided to any current or governing such former employee, individual independent contractor or director of any Company relating to any Company Benefit Arrangement and any funding medium for the proposed Company Benefit Arrangements, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events that would result in any material Liability to any Company Person, (vii) all material correspondence to or from any Governmental Authority relating to any Company Benefit Arrangement; , (iiviii) the form of any COBRA elections and related notices related to Company Benefit Arrangements, (ix) all insurance policies in the possession of any Company Person pertaining to fiduciary liability insurance covering the fiduciaries for each Company Benefit Arrangement, (x) all discrimination tests required under the Code for each Company Benefit Arrangement intended to be qualified under Section 401(a) of the Code for the three most recently filed IRS Form 5500; recent plan years, and (iiixi) the most recent summary plan description (IRS determination or other descriptions provided opinion letter issued with respect to employeeseach Company Benefit Arrangement intended to be qualified under Section 401(a) and all modifications thereto; and (iv) all non-routine correspondence to and from any state or federal agencyof the Code.
(li) No Each Company Benefit Arrangement has been established and maintained in compliance in all material respects with its terms and with the requirements prescribed by any and all Law that is applicable to such Company Benefit Arrangement, including ERISA and the Code. Each Company Person has performed in all material respects all obligations required to be performed by it under each Company Benefit Arrangement and is not in default or violation in any material respect of the terms of any Company Benefit Arrangement. Each such Company Benefit Arrangement that is intended to qualify under Section 401(a) of the Code has received a favorable opinion, advisory, notification and/or determination letter, as applicable, as to its qualified status under the Code, and nothing has occurred since the date of such letter that would materially adversely affect such favorable determination. To the Knowledge of the Company, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Benefit Arrangement. There is no claim, suit, administrative proceeding, action or other litigation pending, or, to the Knowledge of the Company, threatened (other than routine claims for benefits), against any Company Benefit Arrangement or against the assets of any Company Benefit Arrangement. Each Company Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without Liability to Parent, any Company Person or any ERISA Affiliate (other than ordinary administration expenses). There is no audit, inquiry, administrative proceeding, or action pending or, to the Knowledge of the Company, threatened by the IRS, U.S. Department of Labor, or any other Governmental Authority with respect to any Company Benefit Arrangement. No Company Person nor any ERISA Affiliate has ever incurred any penalty or Tax with respect to any Company Benefit Arrangement under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. No Company Benefit Arrangement shall be subject to any surrender fees or services fees upon termination other than the normal and reasonable administrative fees associated with the termination of benefit plans.
(j) No Company Person nor any ERISA Affiliate has maintained, established, sponsored, participated in, or contributed to any: (i) pension plan subject to Title IV of ERISA, (ii) a “multiemployer plan” within the meaning of Section (3)(37) of ERISA, (iii) a “multiple employer plan” as defined in Section 413(c) of the Code, (iv) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, (v) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA, (vi) a funded welfare plan within the meaning of Section 419 of the Code, or (vii) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. No Company Person has ever maintained, established, sponsored, participated in or contributed to, any Company Benefit Arrangement in which stock of any Company Person is or was held as a plan asset.
(k) All contributions due from any Company Person with respect to any of the Company Benefit Arrangements have been made or have been accrued in all material respects on the Company Balance Sheet, and no further contributions shall be due or are required to be accrued thereunder as of the Closing Date (other than contributions accrued in the Ordinary Course of Business, after the Balance Sheet Date as a result of the operations of the Company after the Balance Sheet Date). All contributions due from any Company Person with respect to any Company Benefit Arrangement qualified under Section 401(a) of the Code and containing a Code Section 401(k) cash or deferred arrangement or any similar provisions of any other Law have been timely made in all material respects. All claims as of the Closing Date made under any self-insured Company Benefit Arrangement that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA (whether or not subject to ERISA) have been paid or, if not paid, will be timely paid by the Company in all material respects.
(l) No Company Person has any material Liability to any employee or to any organization or any other entity as a result of the termination of any employee leasing arrangement.
(m) There has been no amendment to, written interpretation or announcement by any Company Person relating to, or change in employee participation or coverage under, any Company Benefit Arrangement that would increase materially the expense of maintaining such Company Benefit Arrangement above the level of the expense incurred in respect thereof during the calendar year 2013 (other than increased insurance premiums), except any such amendments that are required under Law.
(n) Unless otherwise indicated in Schedule 3.15(n) of the Company Disclosure Letter, no Company Person is a party to any Company Benefit Arrangement: (i) Each with any current or former employee, individual consultant or individual advisor of any Company Benefit Arrangement isPerson (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving any Company Person in the nature of the Merger or any of the other transactions contemplated by this Agreement, or (B) providing severance benefits or other benefits after the termination of employment of such employee (including death or medical benefits, whether or not insured, with respect to any former or current employee or any spouse or dependent of any such employee) regardless of the reason for such termination of employment other than as required by COBRA (or similar state Laws) or other Law, or (ii) the benefits of which shall be increased, or except with respect to Vested Company Options and the Participating Amounts, the vesting of benefits of which shall be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement, or any event subsequent to the Merger, or the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated by this Agreement. Except as set forth in Schedule 3.15(n) of the Company Disclosure Letter, no Company Person has been operated in an obligation to pay any material compliance with amount or provide any material benefit to any former employee or officer, other than obligations (1) for which the Company has established a reserve for such amount on the Company Balance Sheet and (2) pursuant to Contracts entered into after the Balance Sheet Date and disclosed on Schedule 3.15(n) of the Company Disclosure Letter.
(o) No Company Person has established any material compensation and benefit plan that is maintained or is required to be maintained or contributed to by Law or applicable Laws and regulations and is and has been administered in all material respects in accordance with applicable Laws and regulations and with its termscustom or rule of the relevant jurisdiction, outside of the United States.
Appears in 1 contract
