Common use of Employees; Independent Contractors Clause in Contracts

Employees; Independent Contractors. (a) The Company has provided to Parent a list of all employees of the Company and its Subsidiaries immediately before the Effective Time (“Employees”), along with the position, date of hire and the annual rate of compensation of each such person (including salary or, with respect to Employees compensated on an hourly or per diem basis, the hourly or per diem rate of compensation and estimated or target annual incentive compensation), and has identified any Employees in the United States who are on a Company-approved leave of absence and the type of such approved leave and any Employees outside of the United States who to the knowledge of the Company are on a Company-approved leave of absence and the type of such approved leave. Except as set forth in Section 5.13(a) of the Company Disclosure Schedule, to the knowledge of the Company, each such Employee has entered into a confidentiality and assignment of inventions agreement with the Company or a Subsidiary of the Company. (b) The Company has provided to Parent a list of all companies or individuals performing independent consulting services or under contract to perform such services in the future for fees in excess of $100,000 for the Company or any of its Subsidiaries and to the knowledge of the Company such list is complete and accurate as of the Effective Time. To the knowledge of the Company, the Company and its Subsidiaries have properly classified all such independent contractors under applicable Law. (c) Except as set forth in Section 5.13(c)(i) of the Company Disclosure Schedule, to the knowledge of the Company, no employee identified on Section 5.13(c)(ii) of the Company Disclosure Schedule (“Key Employee”) has notified the Company in writing or verbally informed any other Key Employee of such Key Employee’s intention to terminate employment with the Company or any of its Subsidiaries or of such Key Employee’s receipt of an offer of employment from another employer. (d) Except as set forth in Section 5.13(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement or otherwise required to bargain with any union, nor has any of them experienced within the last twenty four months any strikes or other industrial actions, grievances, claims of unfair labor practices, or other collective bargaining disputes or trade disputes. No organizational effort has been made or threatened by or on behalf of any labor union (which includes any application or request for recognition) within the last twenty-four months with respect to any employees of the Company or any of its Subsidiaries. (e) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has committed any material unfair labor practice or materially violated any applicable Laws, including foreign Laws, within the last twenty-four months relating to employment or employment practices or termination of employment, including those relating to wages and hours, discrimination in employment, occupational health and safety, and collective bargaining. Except as set forth in Section 5.13(e) of the Company Disclosure Schedule, there is no pending or threatened charge or complaint against the Company or any of its Subsidiaries involving any employment matter, including any charge or complaint before the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable state, local, or foreign agency. (f) Neither the Company, nor, to the knowledge of the Company, any director or officer of the Company, nor any relatives of any director or officer, owns directly or indirectly, individually or collectively, any interest in any corporation, company, partnership, entity or organization which is in a business similar or competitive to the businesses of the Company or which has any existing undisclosed contractual relationship with the Company. (g) The Company and its Subsidiaries have properly paid or accrued all wages and salaries and employment taxes (including social security taxes and other payroll taxes and including any share owed by the employer and any share that the Company and its Subsidiaries were required to withhold from the compensation paid to Employees) and are not liable for any penalties or arrears, except for any arrears that would exist in the ordinary course of business and would be in compliance with applicable Law. (h) Except as set forth in Section 5.13(h) of the Company Disclosure Schedule, no Employee is entitled to receive any payments or other compensation or benefits as a result of the Closing (other than payments or other consideration provided to the stockholders of the Company as described in this Agreement). (i) To the knowledge of the Company, all Employees are authorized and have appropriate documentation to work in the countries in which they are assigned and the Company and its Subsidiaries are in compliance with all applicable immigration laws. (j) To the knowledge of the Company, no former employee, consultant, or contractor of the Company or any of its Subsidiaries is in violation of any agreement with the Company or any of its Subsidiaries relating to inventions, competition, solicitation, or confidentiality. (k) The Company and its Subsidiaries have not experienced a layoff or plant closing within the last twelve months that would give rise to liability under the Worker Adjustment and Retraining Notification Act or any similar state, local, or foreign law or regulation.

Employees; Independent Contractors. (a) The Company has provided to Parent a list of all employees of the Company and its Subsidiaries as of the date of this Agreement, and will provide at Closing an updated list of such employees as of immediately before the Effective Time (“Employees”), along with the position, date of hire and the annual rate of compensation of each such person (including salary or, with respect to Employees compensated on an hourly or per diem basis, the hourly or per diem rate of compensation and estimated or target annual incentive compensation), promised increases in compensation or increases contemplated by the Company, promised promotions or promotions contemplated by the Company, accrued but unused sick and vacation leave, and service credited for purposes of vesting and eligibility to participate under any Company Benefit Plans or Company Non-U.S. Benefit Plans, and has identified any Employees in the United States who are on a Company-approved leave of absence and the type of such approved leave and any Employees outside of the United States who to the knowledge of the Company are on a Company-approved leave of absence and the type of such approved leave. Except as set forth in on Section 5.13(a) of the Company Disclosure Schedule, to the knowledge of the Company, each such Employee has entered into a confidentiality and assignment of inventions agreement with the Company or a Subsidiary of the CompanyCompany in the form set forth in Section 5.13(a) of the Company Disclosure Schedule. (b) The Section 5.13(b) of the Company has provided to Parent Disclosure Schedule sets forth a list of all companies or individuals independent contractors performing independent consulting services or under contract to perform such future services in the future for fees in excess of $100,000 for the Company or any of its Subsidiaries and to the knowledge of the Company such list is complete and accurate as of immediately before the Effective Time, and the Company has provided to Parent a copy of all contracts applicable to such independent contractors. To the knowledge of the Company, the Company and its Subsidiaries have properly classified all such independent contractors under applicable Law. (c) Except as set forth in Section 5.13(c)(i) of the Company Disclosure Schedule, to To the knowledge of the Company, no employee Employee identified on Section 5.13(c)(ii5.13(c) of the Company Disclosure Schedule under the heading “Key Employee” (“Key Employee”) has notified the Company in writing or verbally informed any other Key Employee of such Key Employee’s intention plans to terminate employment with the Company or any of its Subsidiaries or of such Key Employee’s receipt of an offer of employment from another employerSubsidiaries. (d) Except as set forth in on Section 5.13(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement agreement, works council or representative of any employee group, or otherwise required to bargain with any union, works council or representative of any employee group, nor has the Company or any of them Subsidiary experienced within the last twenty twenty-four (24) months any strikes or other industrial actions, grievances, claims of unfair labor practices, or other collective bargaining disputes or trade disputes. No organizational effort has been made or or, to the knowledge of the Company, threatened by or on behalf of any labor union (which includes any application or request for recognition) within the last twenty-four (24) months with respect to any employees of the Company or any of its Subsidiaries. There is no union, works council or representative of any employee group that must be notified, consulted or with which negotiations need to be conducted in connection with the transactions contemplated by this Agreement. (e) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has committed any material unfair labor practice or materially violated any practice, and each of the Company and its Subsidiaries has complied in all material respects with applicable Laws, including foreign Laws, their own respective policies, including handbooks, work rules, or internal regulations, within the last twenty-four (24) months relating to employment or employment practices or termination of employment, including those relating to wages and hours, including overtime, rest and meal periods, discrimination in employment, occupational health and safety, fair employment practices, terms and conditions of employment, equal employment opportunity, benefits, workers’ compensation, and collective bargaining, including any applicable foreign national collective bargaining agreement. Except To the knowledge of the Company, except as set forth in on Section 5.13(e) of the Company Disclosure Schedule, there is no pending or threatened charge or complaint against the Company or any of its Subsidiaries involving any employment matter, including any charge or complaint before the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable state, local, or foreign agency. To the knowledge of the Company, all Employees have been properly classified as exempt or non-exempt in accordance with applicable Laws. (f) Neither The Company and its Subsidiaries are in compliance with the Fair Credit Reporting Act and state and foreign counterparts. (g) The Company has distributed the California Department of Fair Employment and Housing pamphlet “Sexual Harassment is Forbidden by Law” (DFEH-185) or otherwise made a one-time dissemination of the DFEH mandated information to all former and current California employees. (h) Except as set forth on Section 5.13(h) of the Company Disclosure Schedule, neither the Company, any director or officer of the Company, nor, to the knowledge of the Company, any director or officer of the Company, nor any relatives immediate family members of any director or officer, owns directly or indirectly, individually or collectively, any interest in any corporation, company, partnership, entity or organization which is in a business similar or competitive to the businesses of the Company and its Subsidiaries or which has any existing undisclosed contractual relationship with the Company or any of its Subsidiaries, other than the ownership as a passive investor (i.e., where the Company, director, officer, or family member is not involved in any way in the management of the business) of less than one percent of the securities of a publicly traded corporation or mutual fund. (gi) The Company and its Subsidiaries have properly paid or accrued all wages and salaries and employment taxes Taxes (including social security taxes Taxes and other payroll taxes Taxes and including any share owed by the employer and any share that the Company and its Subsidiaries were required to withhold from the compensation paid to Employees) and are not liable for any penalties or arrears, except for any arrears that would exist in the ordinary course of business and would be in compliance in all material respects with applicable Law. (h) Except as set forth in Section 5.13(h) of the Company Disclosure Schedule, no Employee is entitled to receive any payments or other compensation or benefits as a result of the Closing (other than payments or other consideration provided to the stockholders of the Company as described in this Agreement). (ij) To the knowledge of the Company, all Employees are authorized and have appropriate documentation to work in the countries in which they are assigned and the Company and its Subsidiaries are in compliance with all applicable immigration lawsLaws. (jk) To the knowledge of the Company, except as set forth on Section 5.13(k) of the Company Disclosure Schedule, no former or current employee, consultant, or contractor of the Company or any of its Subsidiaries is in violation of any agreement with the Company or any of its Subsidiaries relating to inventions, competition, solicitation, solicitation or confidentiality. (kl) The Company and its Subsidiaries have not experienced a layoff or plant closing within the last twelve (12) months that would is reasonably likely to give rise to liability under the Worker Adjustment and Retraining Notification Act or any similar state, local, local or foreign law or regulation. (m) The Company and its Subsidiaries have no affirmative action obligations under applicable law.

Employees; Independent Contractors. (ai) The Company Vendor has provided to Parent a list no employment contract with any Employee listed in Schedule G except such contracts as are listed in Schedule E attached hereto, and such Schedule correctly sets out whether such contracts are in writing and the Employee’s most recent salary with the Vendor (including particulars of all employees of profit sharing, incentive and bonus arrangements applicable to the Company and its Subsidiaries immediately before the Effective Time (“Employees”), along with the position, date of hire and the annual rate of compensation of each such person (including salary or, with respect to Employees compensated on an hourly or per diem basis, the hourly or per diem rate of compensation and estimated or target annual incentive compensationEmployee), and has identified any Employees in his start date with the United States who are on Vendor. Schedule E also sets out a Company-approved leave of absence and the type of such approved leave and any Employees outside complete list of the United States who contracts between the Vendor and independent contractors related to the knowledge of the Company are on a Company-approved leave of absence and the type of such approved leavePurchased Business. Except as set forth in Section 5.13(a) of the Company Disclosure Schedulefor remuneration paid to employees, to the knowledge of the Company, each such Employee has entered into a confidentiality directors and assignment of inventions agreement with the Company or a Subsidiary of the Company. (b) The Company has provided to Parent a list of all companies or individuals performing independent consulting services or under contract to perform such services in the future for fees in excess of $100,000 for the Company or any of its Subsidiaries and to the knowledge of the Company such list is complete and accurate as of the Effective Time. To the knowledge of the Company, the Company and its Subsidiaries have properly classified all such independent contractors under applicable Law. (c) Except as set forth in Section 5.13(c)(i) of the Company Disclosure Schedule, to the knowledge of the Company, no employee identified on Section 5.13(c)(ii) of the Company Disclosure Schedule (“Key Employee”) has notified the Company in writing or verbally informed any other Key Employee of such Key Employee’s intention to terminate employment with the Company or any of its Subsidiaries or of such Key Employee’s receipt of an offer of employment from another employer. (d) Except as set forth in Section 5.13(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement or otherwise required to bargain with any union, nor has any of them experienced within the last twenty four months any strikes or other industrial actions, grievances, claims of unfair labor practices, or other collective bargaining disputes or trade disputes. No organizational effort has been made or threatened by or on behalf of any labor union (which includes any application or request for recognition) within the last twenty-four months with respect to any employees of the Company or any of its Subsidiaries. (e) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has committed any material unfair labor practice or materially violated any applicable Laws, including foreign Laws, within the last twenty-four months relating to employment or employment practices or termination of employment, including those relating to wages and hours, discrimination in employment, occupational health and safety, and collective bargaining. Except as set forth in Section 5.13(e) of the Company Disclosure Schedule, there is no pending or threatened charge or complaint against the Company or any of its Subsidiaries involving any employment matter, including any charge or complaint before the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable state, local, or foreign agency. (f) Neither the Company, nor, to the knowledge of the Company, any director or officer of the Company, nor any relatives of any director or officer, owns directly or indirectly, individually or collectively, any interest in any corporation, company, partnership, entity or organization which is in a business similar or competitive to the businesses of the Company or which has any existing undisclosed contractual relationship with the Company. (g) The Company and its Subsidiaries have properly paid or accrued all wages and salaries and employment taxes (including social security taxes and other payroll taxes and including any share owed by the employer and any share that the Company and its Subsidiaries were required to withhold from the compensation paid to Employees) and are not liable for any penalties or arrears, except for any arrears that would exist in the ordinary course of business and would be in compliance with applicable Law. (h) Except made at current rates of remuneration, or as set forth out in Section 5.13(h3.1(y) of the Company Disclosure Schedule, no payments have been made or authorized since the signing of the Letter of Intent by the Vendor to Employees listed on Schedule G or to independent contractors of the Vendor related to the Purchased Business. No current or former director, officer, shareholder, employee or independent contractor of the Vendor or any person not dealing at arm’s length within the meaning of the Internal Revenue Code with any such person is indebted to the Vendor. All benefit plans listed in the Disclosure Schedule are in compliance in all material respects with all applicable legislation, including, without limiting the generality of the foregoing, the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, and the Internal Revenue Code. No employer contributions are required under any such plans. Neither the Vendor nor any “party in interest” (within the meaning of Section 4975 of the Code) has engaged in a transaction or transactions in connection with which the Vendor could be subject, individually or in the aggregate, to other civil penalties assessed pursuant to Section 502(i) of ERISA or tax liabilities imposed by Section 4975 of the Code. No liability under Title IV of ERISA has been incurred either directly or indirectly by the Vendor or any ERISA Affiliate. There is no pending or, to the Vendor’s knowledge, threatened claim against or otherwise involving any plan, or any fiduciary thereof, by or on behalf of any participant or beneficiary under any plan (other than routine claims for benefits), nor is there any pending or, to the Vendor’s knowledge, threatened claim by or on behalf of any of the plans, which has or could have an adverse effect on the Vendor. (ii) Section 3.1(y)(ii) of the Disclosure Schedule lists all Benefit Plans applicable to the Employees (the “Disclosed Plans”). Except for the Disclosed Plans, there are no health or accident plans, programs, contracts, understandings or arrangements in which any employee, former employee, retired employee (or beneficiary of any of them) of the Vendor is entitled to receive any payments or other compensation or benefits as a result of the Closing (other than payments or other consideration provided to the stockholders of the Company as described in this Agreement)participate. (iiii) To the knowledge All required employer contributions under any of the Company, all Employees are authorized and Disclosed Plans have appropriate documentation to work in the countries in which they are assigned been made and the Company applicable funds have been funded in accordance with the terms of the plans and no past service funding liabilities exist thereunder. (iv) Each of the Disclosed Plans has at all times been operated in accordance with the health care continuation provisions of the Employee Retirement Income Security Act of 1974, the Internal Revenue Code, the Consolidated Omnibus Budget Reconciliation Act of 1985 and state health care continuation laws, the Health Insurance Portability and Accountability Act of 1996, the Newborns’ and Mother’s Health Protection Act of 1996, the Mental Health Parity Act of 1996 and the Women’s Health and Cancer Act of 1998. With respect to any individuals who lose coverage under any of the Disclosed Plans in connection with the transactions contemplated by this Agreement, the Vendor will provide all notices, elections and other rights concerning health care continuation privileges required of the Vendor and the Purchaser under such statutes, will provide any elected continuation coverage through one or more of the Vendor’s group health plans, and will indemnify and hold harmless Purchaser and its Subsidiaries are affiliated entities for any damages or expenses incurred by them in compliance this regard. (v) Vendor will comply with all applicable immigration lawsemployee termination notice and similar laws as they impact on the transactions contemplated by this Agreement. (jvi) To the knowledge Vendor will comply with all applicable requirements of the Company, no former employee, consultant, or contractor of the Company or any of its Subsidiaries is in violation of any agreement with the Company or any of its Subsidiaries relating to inventions, competition, solicitation, or confidentiality. (k) The Company and its Subsidiaries have not experienced a layoff or plant closing within the last twelve months that would give rise to liability under the Worker Adjustment and Retraining Notification Act and all similar laws as they impact on the transactions contemplated by this Agreement, or alternatively, with respect to the transactions contemplated by this Agreement, the Vendor represents and warrants that no such actions under such laws are required. (vii) No employees, former employees or retired employees of the Vendor, as a result of their employment with the Vendor, are participants in any “multiemployer plan” which is a “pension plan” as such terms are defined in ERISA, and Vendor has no current, contingent or potential liability of any kind, including withdrawal liability, with respect to any such plan except for contributions due in the ordinary course which are due but not yet payable. As of the Closing Date, if Vendor withdrew from any multiemployer plan, the Vendor would not incur any withdrawal liability. (viii) It is understood and agreed that effective as of the Effective Date, the Purchaser will offer employment to the Employees and will enter into an employment agreement with each of them substantially in the form attached as Schedule K. (ix) The Vendor has complied in all material respects with all laws, rules and regulations relating to the employment of labour, including those relating to wages, hours, pay equity, overtime, occupational safety, discrimination and the payment of social security and other payroll related taxes, and has not received any written notice alleging failure to comply in any material respect with any such laws, rules or regulations. No controversies, disputes or proceedings are pending or, to the Vendor’s knowledge, threatened, between the Vendor and any employee of the Vendor. There is no labour strike, dispute, slowdown, representation campaign or work stoppage actually pending or, to the Vendor’s knowledge, threatened with respect to the Vendor’s employees. (x) Since the Balance Sheet Date, there has not been any increase in the rate or terms of compensation payable by the Vendor to, or any similar stateincrease in the rate or terms of any bonus, localinsurance, pension, or foreign law or regulationother employee benefit plan on behalf of its employees, except increases occurring in the ordinary course of business in accordance with its customary practices (which shall include normal period performance reviews and related compensation and benefit increases).