Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has: (a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”; (b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees; (c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records; (d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws; (e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws; (f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws); (g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees; (h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement; (i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business; (j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or (k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years. (l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Woodward, Inc.)
Employment Matters. Section 3.15 9.1.12.1. None of the Seller Disclosure Schedule contains Seller's employees are covered by a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus collective bargaining agreement or other additional compensation (or the terms thereof, if determined pursuant to are represented by a scale or formula), if any, (f) current employee status, including, if on leave, the type of leavelabor organization, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or no petition for the benefit of representation concerning any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates 's employees has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection filed with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations ; the Seller is not aware of any union organizational activity and has no reason to believe that any such activity is being contemplated. The Seller has not engaged in any unfair labor practice.
9.1.12.2. Seller is not in violation of applicable labor equal employment opportunity wage and hour or any other Laws of any Government or governmental Agency relating to employment; there are no active, pending, or threatened administrative or judicial proceedings under any Laws of any Government or Governmental Agency; there are no claims, charges, and employment related suits or controversies which have occurred within the last 10 years or are presently pending or threatened under any employment related Laws of any Government or Governmental Agency; and the Seller is not subject to any judgments, decrees, conciliation agreements and settlement agreements concerning employment related matters.
9.1.12.3. The Seller has not entered into any employment agreements with any of its employees, and all employees may be terminated at will; there is no contractual obligation or special termination or severance arrangement in respect of any of Seller's employees; and there is no provision of any agreement or arrangement with any of the Seller's employees, or any other legal or contractual requirement, which would obligate the Seller to require the Purchaser of the Assets to employ any of the Seller's employees.
9.1.12.4. The Seller has paid all wages or amounts that have been listed within this agreement, bonuses, commissions and other benefits and sums due (and all required taxes, insurance, social security and withholding thereon). All accrued vacation, accrued sick leave, accrued benefits and accrued payments (and pro rata accruals for a portion of a year) to its employees.
9.1.12.5. The Seller has maintained in effect all insurance policies and other employee benefits covering any employee claims incurred through the Closing Date and will assign, transfer and deliver contracts to the Purchaser.
9.1.12.6. The Purchaser is under no obligation or duty, whether under any contract, agreement, understanding or arrangement or under any applicable Law of any Government or Governmental Agency to assume or be responsible for any obligation, duty or liability, now existing or hereafter arising, relating to or in connection with the Business Seller's employees or any time compensation, benefits or benefit plans in the last three years.
(l) Section 3.15(l) respect of the Seller Disclosure Schedule contains a complete and accurate description Seller's employees, or otherwise arising out of the substance of the oral notification provided by Seller to represented Business Employees on or in connection with the transactions contemplated by this Agreement, including and the description Seller has made no commitment and is under no obligation to cause the Purchaser of the treatment of the pension plan included in Section 5.5(b)(iii)Assets to assume or to be responsible for any such obligation, duty or liability.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Acadia National Health Systems Inc), Assets Purchase Agreement (Acadia National Health Systems Inc)
Employment Matters. Except as set forth in Section 3.15 4.15 of the Seller Company Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of businessSchedules, neither Seller the Company nor any of its Affiliates has: (i) increased the compensation payable or to become payable Subsidiaries is a party to or for bound by any collective bargaining agreement or any other Contract with a labor union or labor organization. Except as set forth in Section 4.15 of the benefit Company Disclosure Schedules, no employees of the Company or any of its Subsidiaries (the “Employees”), in their capacity as such, are represented by any labor union or labor organization. To the Company’s Knowledge, there are no organizing activities or campaigns in progress with respect to any of the Business Employees. There is no pending or, to the Knowledge of the Company, threatened labor dispute, strike, slowdown, work stoppage or (ii) increased, augmented lockout at the Company or improved benefits granted to or for the benefit of any of its Subsidiaries, and there has been no such actions since January 1, 2007. Except as set forth on Section 4.15 of the Business Employees under Company Disclosure Schedules, there is no unfair labor practice, charge or complaint pending or, to the Knowledge of the Company, threatened against the Company or any Seller Benefit Planof its Subsidiaries. At any time in the last three years, neither the Seller Neither Company nor any of its Affiliates has:
(a) Subsidiaries has engaged in any plant closing or employee layoff activities violating or giving rise to Seller’s Knowledgethe requirement that notice be given to any Employee under the Worker Adjustment and Retraining Notification Act or under any similar state or local Law since January 1, employed any Business Employee who is not legally eligible for 2005. The Company and its Subsidiaries are and have been since January 1, 2007 in compliance, in all material respects, with all applicable Law relating to labor or labor relations and employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration terms and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Lawsconditions, including U.S. Social Security Administration “No-Match” letters”;
any provision thereof relating to (bi) been delinquent in payments to any Business Employee for any wages (including overtime compensation)wages, salarieshours, bonuses, commissions, bonuses termination pay, vacation pay, sick pay, fringe benefits, employee benefits, health insurance continuation (COBRA), and the payment and/or accrual of the same and all insurance and all other costs and expenses applicable thereto; (ii) unlawful, wrongful, retaliatory, or other direct compensation for any services performed by them discriminatory employment or any amounts required to be reimbursed to such Business Employees;
labor practices; (ciii) violated any Laws in any material respect with respect to employment occupational health and employment practicessafety standards, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees(iv) immigration, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientationworkers’ compensation, disability, veteran statusunemployment compensation, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacywhistleblower laws, and fair other employment practices. The Business has filed laws; and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been neither Company nor any of its Subsidiaries is liable for the payment of any claims, damages, fines, penaltiesarrearage, or other amounts to any current costs or former Business Employees, however designated, penalties for failure to comply with any of the foregoing. All Employees who perform work in the United States are authorized to work in the United States, and a Form I-9 has been properly completed and retained with respect to each Employee. To the Knowledge of the Company, the activities of the Employees for the Company and its Subsidiaries do not conflict with or constitute a breach of the terms of any employment Laws, or is party to any judgment, settlement agreement, consent decreeintellectual property disclosure agreement, restrictive covenant, or other agreement with any Governmental Entity requiring continuing compliance by which such Employee is obligated or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Businessbound, and neither Seller the Company nor any of its Affiliates Subsidiaries has been cited by any Governmental Entity received (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with past two years) any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due written allegation to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearssuch effect.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Griffon Corp), Stock Purchase Agreement (Ames True Temper, Inc.)
Employment Matters. (a) Section 3.15 3.23(a) of the Seller Disclosure Schedule Schedules contains a true and complete listing list of all persons who are or are expected to be employees, independent contractors or consultants of the names of all Business Employees, together with the following information Sellers as of the date hereof with respect to Closing Date, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full or part time); (iii) date of hire date; (and service start date if such date is different from date of hire), (div) current annual base compensation rate, ; (ev) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, incentive-based compensation; and (gvi) hours a description of accrued vacationthe fringe benefits provided to each such individual as of the Closing Date. As of the Closing Date, sick daysall compensation, personal daysincluding wages, float days commissions and any other paid time offbonuses, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to employees, independent contractors or for the benefit of any consultants of the Business EmployeesSellers for services performed on or prior to the Closing Date have been paid in full and there are no outstanding agreements, understandings or (ii) increased, augmented or improved benefits granted to or for the benefit of any commitments of the Business Employees under Sellers with respect to any Seller Benefit Plan. At any time in the last three yearscompensation, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, commissions or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;bonuses.
(b) The Sellers are and have been delinquent in payments to any Business Employee for any wages (including overtime compensation)compliance with all applicable laws, salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect rules and regulations pertaining to employment and employment practices, terms including all laws, rules and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws regulations relating to wages and labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, payment of wagesovertime compensation, child labor, family hiring, promotion and medical leavetermination of employees, access to facilities working conditions, meal and employment opportunities for disabled personsbreak periods, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, health and fair employment practices. The Business has filed safety, workers’ compensation, leaves of absence and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
unemployment insurance (d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited towithout limitation, those regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) and the Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies)). There are currently no citations or other proceedings under applicable occupational safety All individuals characterized and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken treated by the Buyer following Sellers as independent contractors or consultants are properly treated as independent contractors under all applicable laws, rules and regulations. All employees classified as exempt under the Closing) under applicable Laws (including the WARN Fair Labor Standards Act or any similar and state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth and local wage and hour laws are properly classified in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other all material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsrespects.
(lc) Section 3.15(l) There are no employee or employment-related claims pending, nor to the knowledge of the Sellers are there any claims threatened, by any employee or former employee of Sellers nor has any Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreementreceived any written notice regarding workers compensation, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)EEOC or OSHA Claims.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Sebring Software, Inc.)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (The Parent and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: Subsidiaries:
(i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employeesare in compliance in all material respects with all Applicable Laws respecting employment, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment employment, and wages and hours in connection with respect to all of its Employees;
(ii) has withheld all amounts required by law or by agreement to be withheld by it from the employment of wages or salaries of, and other payments to, Employees;
(iii) are not liable for any Business Employees, including any such Laws relating to wages and hours, payment arrears of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion taxes or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, penalty for failure to comply with any employment Lawsof the foregoing;
(iv) are not liable for any payment to any trust or other fund or to any Governmental Body with respect to unemployment compensation benefits, social security or other benefits for its Employees (other than routine payments to be made in the ordinary course of business and consistent with past practice);
(v) have provided or will provide its Employees with all wages, benefits, stock options, bonuses, incentives and all other compensation that are, or have become, due and payable through to the Closing; and
(vi) represent that in the three years prior to the Execution Date, no citation has been issued by any Governmental Body against it, and no notice of contest, claim, complaint, charge, investigation or other administrative enforcement Proceeding involving it has been filed or is party pending or, to its knowledge, threatened, against it under any judgmentApplicable Law relating to occupational safety and health.
(b) Except for claims by Employees under any applicable workers’ compensation or similar legislation which, settlement agreementif adversely determined, consent decreewould not, either individually or in the aggregate, have a Parent Material Adverse Effect, there are no complaints, claims or charges pending or outstanding or, to the knowledge of the Parent, anticipated, and there are no Orders, decisions, directions or convictions currently registered or outstanding by any Governmental Body against, or other agreement with in respect of, the Parent or any Governmental Entity requiring continuing compliance of its Subsidiaries under or reporting obligations entered into to resolve in respect of any labor employment legislation.
(c) The Parent have listed in the Parent Disclosure Letter all Employees in respect of whom the Parent and its Subsidiaries have been advised by any workers compensation or employment mattersimilar authority that such Employees are in receipt of benefits under workers’ compensation or similar legislation. There are no formal appeals pending before any workers compensation or informal actionssimilar authority involving the Parent or its Subsidiaries, proceedingsand all levies, controversies, grievances, charges, proceedings or investigations assessments and penalties made against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller Parent and its Affiliates maintains all records and reports pertaining Subsidiaries pursuant to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) legislation have been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative paid. The Parent is not aware of any Business Employees, received audit currently being performed by any demand for recognition from any labor organization, workers compensation or been party to any petition for recognition or representation rights with any Governmental Entity similar authority with respect to the Parent and its Subsidiaries, and all payments required to be made in respect of termination or severance pay under any Business Employees; or
(k) committed any violation employment standards or similar legislation in any material respect of any labor Laws of any jurisdiction where Employee have been made by the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsParent.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (ALKALINE WATER Co INC), Merger Agreement
Employment Matters. (a) Section 3.15 3.12(a) of the Seller Disclosure Schedule Schedules contains a true and complete listing of the names list of all Business Employees, together with the following information persons who are employees of CPBR as of the date hereof with respect to hereof, and sets forth for each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or individual the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasfollowing: (i) increased name; (ii) title or position (including whether full or part time); (iii) current annual base compensation rate; and (iv) a description of the compensation payable or fringe benefits provided to become each such individual as of the date hereof. Except as set forth in Section 3.12(a) of the Disclosure Schedules, as of the date hereof, all compensation, including wages, commissions and bonuses and employment taxes, social security payments and similar governmental payments, payable to (or for the benefit of) employees, independent contractors or consultants of CPBR for services performed on or prior to the date hereof have been paid in full (or accrued in full on in this ordinary course of business and there are no outstanding agreements, understandings or commitments of CPBR with respect to any of the Business Employeescompensation, commissions or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;bonuses.
(b) CPBR is and has been delinquent at all times from November 30, 2009 up to and including the Closing Date in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any compliance with all applicable Laws in any material respect with respect to respecting employment and employment practices, and terms and conditions of employment (including existing and wages and hours prior union agreements) except, in connection with the employment of any Business Employees, including any such Laws relating case, for such non-compliance or violations as would not have in the aggregate a Material Adverse Effect.
(c) Except as specified in the Disclosure Schedules, there are no written employment Contracts related to wages any employees of CPBR and hours, payment of wages, child labor, family and medical leave, access no material consulting Contracts to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;which CPBR is a party.
(d) been liable for the payment CPBR has not caused any mass layoff (as defined in WARN) of any claimsPersons working for CPBR.
(e) Schedule 3.12(e) of the Disclosure Schedules provides a complete and accurate summary description of each CPBR Benefit Plan. True and complete copies of each of the CPBR Benefit Plans, damagessummary plan descriptions, finesadministration agreements, penaltiesrelated trusts, insurance or group annuity contracts and each other funding or financing arrangement relating to any CPBR Benefit Plan, including any amendments thereto, have been furnished or made available to Buyer.
(f) Each CPBR Benefit Plan (and each related trust, insurance contract or funding arrangement) has been administered and operated in accordance with the terms of the controlling documents and with applicable provisions of ERISA, the Code and all other applicable Laws except as would not otherwise have a Material Adverse Effect.
(g) All contributions due and owing to any CPBR Benefit Plan have been paid to the applicable CPBR Benefit Plan (or related trust or held in the general assets of CPBR, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. accrued as appropriate on the Balance Sheet of CPBR).
(h) There are no formal unresolved claims or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against disputes under the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out terms of, or in connection with, any CPBR Benefit Plan (other than routine claims for benefits) and no action, legal or otherwise relating otherwise, has been commenced with respect to alleged violation any such claim or dispute. To the Knowledge of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health includingCPBR, but not limited tono CPBR Benefit Plan is the subject of an investigation, audit, or adverse proceeding involving the PBGC, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqIRS or the DOL., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced The execution of this Agreement and the consummation of the transactions contemplated herein will not (A) result in any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering payment becoming due to any organizing activities officer, director, employee or other material labor dispute pending orconsultant of CPBR (except as otherwise disclosed in Section 3.15), to Seller’s Knowledge(B) materially increase the benefits otherwise payable by CPBR, threatened against or (C) result in the Business;acceleration of the time of payment or vesting of any awards or benefits under any CPBR Benefit Plan.
(j) recognized Since its formation, CPBR has not (A) maintained or sponsored, nor participated in, any labor organization as the representative Employee Pension Benefit Plan subject to Title IV of any Business Employees, received any demand ERISA for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining employees, (B) contributed to the Business or any Business Employees, and Seller and its Affiliates have not been subject required to contribute to any remedial order issued by Multiemployer Plan, or (C) maintained or contributed to any Governmental Entity (including the National Labor Relations Board) Employee Welfare Benefit Plan that provides health, medical or life insurance benefits for violations of applicable labor Laws retired or terminated employees, their spouses or their dependents, other than in connection accordance with the Business any time in the last three years.
(l) Section 3.15(l) 4980B of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)Code.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Global Partners Lp)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasThe Company: (i) increased the compensation payable is, and at all times has been, in compliance in all material respects with all applicable Legal Requirements, and with any order, ruling, decree, judgment or to become payable to or for the benefit arbitration award of any of the Business Employees, arbitrator or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses court or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and governmental body, respecting employment, employment practices, terms and conditions of employment and wages and employment, wages, hours in connection with the employment of any Business Employeesor other labor-related matters, including any such Laws Legal Requirements, orders, rulings, decrees, judgments and awards relating to discrimination, worker classification (including the proper classification of workers as independent contractors and consultants), wages and hours, payment labor relations, leave of wagesabsence requirements, child laboroccupational health and safety, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reportsharassment, affirmative action plans and other similar records;
(d) been liable for retaliation, immigration, wrongful discharge or violation of the payment personal rights of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, former Employees or prospective Employees; (ii) has no liability for any arrears of wages or any Taxes or any penalty for failure to comply with any employment Laws, or is party of the foregoing; and (iii) has no liability for any payment to any judgment, settlement agreement, consent decree, trust or other agreement fund governed by or maintained by or on behalf of any governmental body with respect to unemployment compensation benefits, social security or other benefits or obligations for any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened Employee (other than routine payments to be brought or filed by or made in the normal course of business and consistent with any Governmental Entity or arbitrator based onpast practice). Since January 1, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to2013, the U.S. Occupational Safety Company has not effectuated a “mass layoff,” “plant closing,” partial “plant closing,” “relocation” or “termination” (each as defined in the Worker Adjustment and Health Retraining Notification Act (the “WARN Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations any similar Legal Requirement) affecting any site of employment or other proceedings under applicable occupational safety and health Laws one or regulations pending against Seller more facilities or operating units within any site of employment or facility of any of the Company or its Affiliates pertaining to Subsidiaries. Except as listed on Section 3.12(g) of the BusinessCompany Disclosure Letter, and neither Seller nor any no Employee of its Affiliates the Company has been cited by any Governmental Entity (including OSHA discharged or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time has resigned in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity twelve (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f12) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsmonth period.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Volcano Corp), Merger Agreement (Volcano Corp)
Employment Matters. Section 3.15 3.12.1 None of the Seller Disclosure Schedule contains Seller's employees are covered by a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus collective bargaining agreement or other additional compensation (or the terms thereof, if determined pursuant to are represented by a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any and no petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or concerning any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not Seller's employees has been subject to any remedial order issued by any Governmental Entity (including filed with the National Labor Relations Board) for violations ; Seller is not aware of any union organizational activity and has no reason to believe that any such activity is being contemplated. Seller has not engaged in any unfair labor practice.
3.12.2 Except as set forth on Exhibit 3.12.2, Seller is not in violation of applicable labor equal employment opportunity wage and hour requirement or any other Laws of any Government or Governmental Agency relating to employment; there are no active, pending, or, threatened administrative or judicial proceedings under any Laws of any Government or Governmental Agency; there are no claims, charges, and employment related suits which have occurred within the last three years or are presently pending or, to the best of Seller's and Shareholders' knowledge, threatened under any employment related Laws of any Government or Governmental Agency; and Seller is not subject to any judgments, decrees, conciliation agreements and settlement agreements concerning employment related matters.
3.12.3 Seller has not entered into any employment agreements with any of its employees, and all employees may be terminated at will; there is no contractual obligation or special termination or severance arrangement in respect of any of Seller's employees; and there is no provision of any agreement or arrangement with any of Seller's employees, or any other legal or contractual requirement, which would obligate Seller to require Purchaser of the Assets to employ any of Seller's employees.
3.12.4 Seller has paid, in accordance with its normal payroll practices and all applicable Laws, all wages, bonuses, commissions and other benefits and sums due (and all required taxes, insurance, social security and withholding thereon), as they have accrued, except for such items, and accrued vacation, accrued sick leave, accrued benefits and accrued payments (and pro rata accruals for a portion of a year), accruing during the pay period immediately preceding the Closing.
3.12.5 Purchaser is under no obligation or duty, whether under any contract, agreement, understanding or arrangement or under any applicable Law of any Government or Governmental Agency to assume or be responsible for any obligation, duty or liability, now existing or hereafter arising, relating to or in connection with the Business Seller's employees or any time compensation, benefits or benefit plans in the last three years.
(l) Section 3.15(l) respect of the Seller Disclosure Schedule contains a complete and accurate description Seller's employees, or otherwise arising out of the substance of the oral notification provided by Seller to represented Business Employees on or in connection with the transactions contemplated by this Agreement, including the description and Seller has made no commitment and is under no obligation to cause Purchaser of the treatment of the pension plan included in Section 5.5(b)(iii)Assets to assume or to be responsible for any such obligation, duty or liability.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ameriking Inc), Asset Purchase Agreement (Ameriking Inc)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleSeller is not a party to or bound by any collective bargaining agreement covering, (b) locationand there are no labor unions, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus works councils or other additional compensation (organizations representing, any Employee. There has been no labor union organizing campaigns, petitions or other union organizing activities seeking recognition of a collective bargaining unit relating to any Employee. No strike, slowdown, picketing, work stoppage or concerted refusal to work overtime has occurred or has been threatened in writing between Seller or any of its Affiliates, on the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leaveone hand, and (g) hours of accrued vacationany Employee, sick days, personal days, float days and any on the other paid time off, if any. Since June 30, 2012hand, except for such disputes with individual employees arising in the ordinary course of business.
(b) With respect to the Business, neither Seller nor any of and its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employeesare and since February 28, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time 2015 have been in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any compliance in all material respects with all applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity the employment of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Lawsits Employees, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to all such Business Employees;
(c) violated any Laws in any material respect with respect relating to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeesemployment, including any such Laws relating to compensation, benefits, collective bargaining, wages and hours, payment the classification of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination personnel (including discrimination based upon sexemployees versus independent contractors and employees as exempt versus non-exempt) for all purposes, pregnancyharassment, marital statusdiscrimination, agehealth and safety, raceimmigration, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities workers’ compensation and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;unemployment compensation.
(dc) With respect to the Business, there have not been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, material controversies, grievancesgrievances or Proceedings initiated, charges, proceedings negotiated or investigations against the litigated with Seller or any of its Affiliates pertaining by any of the Employees, former employees or beneficiaries of employees (current or former) with respect to any Business Employees pending their employment or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection withbenefits incident thereto, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (Authority, including the Occupational Health harassment and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety discrimination claims, wage and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Businesshour claims, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain claims arising under workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard which are currently pending or have been resolved since February 28, 2015, which would reasonably be expected to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party toresult in, or bound byhave resulted in, any Collective Bargaining Agreementmaterial Liability, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending orand, to Seller’s Knowledge, no such material controversy, grievance or Proceeding has been threatened against the Business;that would reasonably be expected to result in any material Liability.
(jd) recognized Neither Seller nor its Affiliates have implemented any labor organization as plant closing or layoff of employees that has triggered the representative of any Business Employees, received any demand for recognition from any labor organizationapplication of, or been party to that was not in compliance with, the Worker Adjustment and Retraining Notification Act, or any petition for recognition similar foreign, state, provincial or representation rights with any Governmental Entity local Laws with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 employees of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsBusiness.
(le) Section 3.15(lSeller has made available a list (which may be anonymized to the extent necessary to comply with applicable data privacy laws) setting forth, for each Employee as of May 2, 2018, such employee’s name or employee identification number, title, job location, employer, hire date, full- or part-time status, active or on leave status (and, if on leave, the nature of the leave and the expected return date), exempt or non-exempt status under the Fair Labor Standards Act (if applicable), annual salary or wage rate, most recent annual bonus received and current annual bonus opportunity for each Employee. Fifteen days prior to the Closing Date, Seller Disclosure Schedule contains will provide Buyer with a complete and accurate description revised version of the substance foregoing list, updated as of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description such date (or as of the treatment of the pension plan included in Section 5.5(b)(iiisuch nearest earlier date as may be reasonably practicable).
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Starbucks Corp)
Employment Matters. (a) Section 3.15 4.17(a) of the Seller Disclosure Schedule Schedules contains a true list of all persons who are or were employed by the Company at any time during the twelve (12) months immediately preceding and complete listing including the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such individual the following: (i) name; (ii) title or position; (iii) whether classified by the Company as exempt or non-exempt under applicable wage and hour laws; (iv) principal work location if other than at the Company’s principal place of business; (v) average hours of work per workweek; (vi) hire date; (vii) most recent base salary or wage rate; (viii) commission, bonus, incentive pay, and/or other compensation opportunity; (ix) a description of all fringe benefits provided by the Company; (x) bank of accrued vacation or other paid time off; (xi) if currently employed, whether active, on a leave of absence or on layoff status; (xii) if no longer employed, the date of termination; (xiii) any benefits, payments, or rights upon a change in control; (xiv) whether employment is terminable at will without notice or cause; (xv) any severance pay or other benefits or rights upon termination of employment; (xvi) work visa status; and (xvii) whether said employment is subject to any written agreements, including offer letters, restrictive covenant agreements, equity or incentive agreements, or other written terms. Except as set forth in Section 4.17(a) of the names of all Business EmployeesSeller Disclosure Schedules, together with the following information as of the date hereof, all compensation, including wages, commissions and bonuses, payable to all employees, independent contractors or consultants of the Company for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of the Company with respect to each such employee: (a) job titleany compensation, commissions or bonuses.
(b) locationExcept as set forth in Section 4.16(b) of the Seller Disclosure Schedules, during the twelve (c12) months preceding the date of this Agreement, no Person has served or acted as an officer, director, independent contractor or consultant of the Company, and the Company has acted only through its partners and employees. Section 4.17(b) of the Seller Disclosure Schedules contains a list of all Persons who are or were retained by the Company as, consultant, trainee or intern (i.e., on a non-employment basis) at any time during the twelve (12) months immediately preceding and including the date hereof, by: (i) name; (ii) classification; (iii) date of hire or engagement; (and service start date iv) a description of said Person’s services for the Company; (v) if such date is different from no longer engaged, the date of hire)termination; (vi) all benefit or payment terms, including frequency, method, and amount of payments; (dvii) base compensation rate, average hours of work per workweek; (eviii) commission, bonus principal work location if other than the Company’s principal place of business; (ix) whether the engagement is terminable at will without notice or cause; (x) any fee or severance pay or other additional benefit or right upon termination of the engagement; and (xi) whether said engagement is subject to any written agreements or other written terms. Except as set forth in Section 4.17(b) of the Seller Disclosure Schedules, as of the date hereof, all compensation payable to the Company’s consultants, trainees and interns for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of the Company with respect to any compensation. The Company represents that (or y) all Persons identified in Section 4.17(b) of the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, Seller Disclosure Schedules have been properly classified by the type of leaveCompany under applicable laws, and (gz) hours of accrued vacationthere are no pending or threatened claims, sick daysreports, personal dayscharges, float days and complaints or audits by any other paid time offPerson, if any. Since June 30including any Governmental Authority, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable relating to or for the benefit of any arising out of the Business Employees, Company’s engagement or (ii) increased, augmented or improved benefits granted to or for the benefit of any classification of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;Persons identified herein.
(c) violated The Company is not, and has not been, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, “Union”), and there is not, and has not been, any Union representing or purporting to represent any employee of the Company and, to the Company’s Knowledge, no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting the Company. The Company has no duty to bargain with any Union. The Company is and has been since August 31, 2011 in compliance with the terms of all applicable Laws in any material respect with respect pertaining to employment and employment practices, terms including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, benefits, classification, overtime compensation, child labor, hiring, promotion and conditions termination of employment employees, working conditions, meal and wages break periods, privacy, health and hours safety, workers’ compensation, leaves of absence and unemployment insurance. All employees of the Company classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified and have been properly paid. Except as set forth in Section 4.17(c) of the Seller Disclosure Schedule, there are no Actions against the Company pending, or to the Company’s Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any Business Employeescurrent or former applicant, including employee, consultant, volunteer, trainee, intern or independent contractor of the Company, including, without limitation, any such Laws claim relating to wages unfair labor practices, employment discrimination, harassment, retaliation, equal pay, wage and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion classification or any other classification protected by law or retaliation for exercise of rights employment-related matter arising under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;Laws.
(d) been liable for the payment of any claims, damages, fines, penalties, The Company is in material compliance with and has not effectuated a “mass layoff,” “plant closing,” “relocation” or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
“termination” (e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time each as defined in the last five years. Seller Worker Adjustment and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity Retraining Notification Act (including OSHAthe “WARN Act”), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented nor incurred any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) liability or obligation under applicable Laws (including the WARN Act or any other similar U.S. state Laws);or local law that remains unsatisfied.
(ge) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within To the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to SellerCompany’s Knowledge, threatened against the Business;
(j) recognized no Company employee is obligated under any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, contract or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial judgment, decree, or order issued by of any court or other Governmental Entity (including Authority that would interfere with such person’s efforts to work for or promote the National Labor Relations Board) for violations interests of applicable labor Laws in connection the Company or that would otherwise interfere with the Business any time in the last three years.
(l) Section 3.15(l) business of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)Company.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Intl Fcstone Inc.)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except Other than as disclosed in the ordinary course of business, neither Seller nor any of its Affiliates has: Buyer Public Documents:
(i) increased there has not been in the compensation payable last two years and there is not currently any labour disruption, grievance, arbitration proceeding or other conflict which could reasonably be expected to become payable to have a Material Adverse Effect on the Buyer ‘s or for the benefit of any of the Business EmployeesBuyer Subsidiaries’ business, or (ii) increasedtaken as a whole, augmented or improved benefits granted to or for and the benefit of any Buyer and each of the Business Employees under any Seller Benefit Plan. At any time Buyer Subsidiaries is in the last three years, neither the Seller nor any compliance with all provisions of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable all Applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to respecting employment and employment practices, terms and conditions of employment and wages and hours in connection hours, except where non-compliance with the employment of any Business Employees, including any such Laws relating provisions would not have a Material Adverse Effect on the Buyer or any of the Buyer Subsidiaries;
(ii) no union has been accredited or otherwise designated to wages represent any employees of the Buyer or any of the Buyer Subsidiaries and, to the knowledge of the Buyer , no accreditation request or other representation question is pending with respect to the employees of the Buyer or any of the Buyer Subsidiaries and hours, payment no collective agreement or collective bargaining agreement or modification thereof has expired or is in effect in any of wages, child labor, family and medical leave, access to the Buyer ‘s facilities and employment opportunities none is currently being negotiated by the Buyer or any Buyer Subsidiary; and
(b) the Buyer Public Documents disclose, to the extent required by applicable Securities Laws, each material plan for disabled personsretirement, employment discrimination (including discrimination based upon sexbonus, pregnancystock purchase, marital statusprofit sharing, agestock option, racedeferred compensation, colorseverance or termination pay, national origininsurance, ethnicitymedical, sexual orientationhospital, dental, vision care, drug, sick leave, disability, veteran statussalary continuation, religion legal benefits, unemployment benefits, vacation, incentive or other classification protected otherwise contributed to, or required to be contributed to, by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable the Buyer for the payment benefit of any claims, damages, fines, penalties, or other amounts to any current or former Business Employeesdirector, however designatedofficer, for failure to comply employee or consultant of the Buyer, each of which has been maintained in all material respects with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement its terms and with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated requirements prescribed by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There all statutes, orders, rules and regulations that are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearssuch employee plans.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date No Seller is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects collective bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any a labor organization representing any Business Employees;of its employees.
(hb) except The Sellers are in compliance, in all material respects, with all applicable Laws pertaining to employment and employment practices. Except as set forth in 3.15(hSchedule 5.14(b), there are no, and during the last two (2) of years there have been no, actions, suits, claims, investigations or other legal proceedings against the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business EmployeesSellers pending, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s the Sellers’ Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employeesto be brought or filed, received any demand for recognition from any labor organization, by or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws Authority in connection with the Business employment of any time in the last three yearscurrent or former employee of any Seller, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay or any other employment related matter arising under applicable Laws.
(lc) Section 3.15(lSchedule 5.14(c) of the Seller Disclosure Schedule contains sets forth a complete and accurate description correct list of each employee of the substance Business as of the oral notification provided date hereof (“Business Employee”), which list also sets forth each Business Employee’s (i) current annual base salary; (ii) job title; (iii) accrued vacation and sick leave time; (iv) premiums paid for benefits; and (v) work location.
(d) Sellers have made available to Buyer with complete and correct copies of (i) all existing severance or other leave agreement of any Business Employee, (ii) all Business Employee trade secret, non-compete, non-disclosure and invention assignment agreements and (iii) all manuals and handbooks applicable to any Business Employee. Except as set forth on Schedule 5.14(d), the employment or consulting arrangement of each Business Employee is, subject to applicable Laws involving the wrongful termination of employees, terminable at will (without the imposition of penalties or damages) by Sellers, and no Seller has any severance obligations if any such Business Employee is terminated (subject to represented applicable Laws governing wrongful termination of employees). To the Knowledge of Sellers, no executive or key Business Employee or any group of Business Employees on has expressed an intention to terminate employment with the transactions contemplated by this AgreementSellers or the Business.
(e) Sellers have paid in full to all of its Business Employees all wages, including salaries, commissions, bonuses, benefits and other compensation due and payable to such employees.
(f) Each Seller is in compliance with the description requirements of the treatment of Workers Adjustment and Retraining Notification Act or any state-law equivalent (collectively, “WARN”) and has no liabilities pursuant to WARN.
(g) The representations and warranties set forth in this Section 5.14 are the pension plan included in Section 5.5(b)(iii)Sellers’ sole and exclusive representations and warranties regarding employment matters.
Appears in 1 contract
Employment Matters. Section 3.15 (a) Schedule 3.11(a) of the Seller Company Disclosure Schedule contains a true true, complete and complete listing accurate list of the names name of all Business Employees, together with the following information as each current Employee of the date hereof with respect to Company and its Subsidiaries, and for each such employee: Employee, his or her (ai) employer; (ii) job title; (iii) current salary or hourly wage rate; (iv) any incentive, bonus, or commissions arrangement; (bv) location, any other special compensation or perquisites (ce.g. automobile allowance); (vi) total compensation received in 2007; (vii) status as exempt or non-exempt from applicable overtime Legal Requirements; (viii) vacation and/or paid time off accrual rate; (ix) amount of accrued vacation and/or paid time off; (x) date of hire hire; and (and service start date if such date is different from date xi) status on a leave of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereofabsence and, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leaveapplicable, the type of leave, leave of absence and (g) hours the expected date of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or return to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;work.
(b) been delinquent in payments Except as set forth on Schedule 3.10(a) of the Company Disclosure Schedule, there is no material claim, Action or charge pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries alleging, with respect to any Business Employee for or Independent Contractor, any wages (including overtime compensation), salaries, commissions, bonuses violation of any Legal Requirement or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect contract relating to employment and employment practices, terms any violation of OSHA or other similar Legal Requirement, or any violation of any collective bargaining agreement, any unlawful discrimination, retaliation or harassment in employment practices or any unfair labor practices before any Governmental Authority or arbitral body.
(c) No Employees are covered by any collective bargaining agreement with respect to their employment with the Company or any of its Subsidiaries. Except as set forth on Schedule 3.11(c) of the Company Disclosure Schedule, during the past three (3) years, no labor union or other organization has (i) filed a petition with the National Labor Relations Board or any other Governmental Authority seeking certification as the collective bargaining representative of any Employee; (ii) negotiated or attempted to negotiate a collective bargaining agreement or other labor union agreement on behalf of any Employees; or (iii) engaged in or, to the Knowledge of the Company, threatened to engage in any organizing activity with respect to any Employee.
(d) There has been no labor strike, work slowdown, employee lockout or concerted work stoppage with respect to the business activities of the Company or any of its Subsidiaries during the last three years and, to the Knowledge of the Company, except as set forth on Schedule 3.11(d) of the Company Disclosure Schedule, there are no pending or threatened union organizing efforts, labor strikes, disputes, slow-downs or work stoppages against the Company or any of its Subsidiaries.
(e) Except as set forth on Schedule 3.10(a) of the Company Disclosure Schedule, to the Knowledge of the Company, there are no unresolved complaints against the Company or any of its Subsidiaries issued by, and conditions neither the Company nor any of employment its Subsidiaries has received notice of any pending material complaint before, the National Labor Relations Board, the Equal Employment Opportunity Commission, the Department of Labor or any comparable non-U.S. Governmental Authority.
(f) Except as set forth on Schedule 3.10(b) of the Company Disclosure Schedule, the Company and wages and hours its Subsidiaries are and, during the prior three (3) years have been, in connection material compliance with all applicable Legal Requirements relating to the employment of any Business Employeeslabor, including any such Laws relating those related to wages and wages, hours, payment classification of wagesemployees as exempt from overtime compensation, child laborimmigration and naturalization, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law)hiring, equal employment opportunities and affirmative actionopportunity, discrimination, harassment, retaliation, employee privacy, collective bargaining and fair employment practices. The Business has filed the payment and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans withholding of Taxes and other similar records;
(d) been sums as required by appropriate Governmental Authorities. Except as set forth on Schedule 3.10(a), the Company and its Subsidiaries have withheld and paid to the appropriate Governmental Authority or are holding for payment not yet due to such Governmental Authority all amounts required to be withheld from Employees of the Company or any of its Subsidiaries and are not liable for the payment any arrears of any claimswages, damagestaxes, fines, penalties, penalties or other amounts to any current or former Business Employees, however designated, sums for failure to comply with any employment Lawsof the foregoing. Except as set forth on Schedule 3.10(b), during the prior three (3) years, the Company and its Subsidiaries have paid in full to all Employees and Independent Contractors or adequately accrued for in accordance with GAAP all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such Employees and Independent Contractors, and neither the Company nor any of its Subsidiaries has received notice of any material claim with respect to payment of wages, salary or overtime pay, or the alleged misclassification of any Employee as exempt from any Legal Requirement governing overtime compensation or any worker as an independent contractor rather than as an employee, that has been asserted or is party now pending or threatened before any Governmental Authority with respect to any judgment, settlement agreement, consent decree, persons currently or other agreement with any Governmental Entity requiring continuing compliance formerly employed or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against engaged by the Seller Company or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, Subsidiaries. Neither the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller Company nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been Subsidiaries is a party to, or otherwise bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreementexecutory consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. The Company and its Subsidiaries are and, during the prior three (3) years, have been in compliance with the requirements of WARN and any similar Legal Requirements and have no liabilities pursuant to WARN, in each case as determined without regard to any terminations of employment that occur on or after the Effective Time.
(g) The Company and its Subsidiaries have classified all individuals who perform services for them correctly under each Benefit Plan, ERISA, the Code and other labor agreement within the definition of Section 301 of the Labor Management Relations Actapplicable Legal Requirements as common law employees, 29 U.S.C. § 185, with any labor organization representing any Business Employees;independent contractors or leased employees.
(h) except Except as set forth in 3.15(hon Schedule 3.11(h) of the Seller Company Disclosure Schedule, been involved in negotiations neither the Company nor any of its Subsidiaries is a party to any contract, agreement or arrangement that (i) restricts the right of the Company or any of its Subsidiaries from terminating any current Employee’s employment or Independent Contractor’s services without cause or without a specified notice period, (ii) obligates the Company or any of its Subsidiaries to pay or provide severance payments or benefits to any Employee or Independent Contractor upon termination of such Employee’s employment or Independent Contractor’s services with the Company or any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeesof its Subsidiaries, or (iii) obligates the Company or any effects bargaining agreement, neutrality of its Subsidiaries to provide any payment or card-check recognition agreement, benefits to any Employee or other labor agreement;Independent Contractor upon a change in control of the Company or any of its Subsidiaries.
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against To the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 Knowledge of the National Labor Relations Act as amendedCompany, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations current management Employee of applicable labor Laws pending against the Seller Company or any of its Affiliates pertaining Subsidiaries is a party to the Business an agreement that interferes with or any Business Employees, and Seller and its Affiliates have not been subject restricts such Employee’s ability to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time engage in the last three years.
(l) Section 3.15(l) business of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)Company or its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (180 Connect Inc.)
Employment Matters. (a) Section 3.15 3.21(a) of the Seller Disclosure Schedule Schedules contains a true and complete listing list of all persons who are employees, independent contractors or consultants of the names of all Business Employees, together with the following information Company or any Subsidiary as of the date hereof with respect to hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full or part time); (iii) date of hire date; (and service start date if such date is different from date of hire), (div) current annual base compensation rate, ; (ev) commission, bonus or other additional compensation incentive-based compensation; and (or the terms thereof, if determined pursuant to a scale or formula), if any, vi) leave status (f) current employee status, including, if on leave, the including type of leave, duration of leave and (gexpected return date). In the case of any employee of the Company in the United States who is not a U.S. citizen, Section 3.21(a) hours of accrued the Disclosure Schedules also sets forth the details of that employee's visa. In the case of any employee of any Subsidiary in the United Kingdom, any employee who is subject to UK immigration control will have a valid immigration status at Closing, entitling that employee to be employed full time by the applicable Subsidiary for at least three months following Closing, and that employee is employed in accordance with the terms of his or her immigration status. A full copy of the relevant passport and immigration approval documents for each such person is set forth in Section 3.21(a) of the Disclosure Schedules. Except to the extent included as a Current Liability on the Estimated Closing Statement, as of the date hereof, all compensation, including wages, commissions, bonuses, vacation, sick days, personal days, float days and any other or paid time off, if anypayable to all employees, independent contractors or consultants of the Company or any Subsidiary for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of the Company or any Subsidiary with respect to any compensation, commissions, bonuses, vacation, sick days or paid time off. Since June 30(b) Except as listed on Section 3.21(b) of the Disclosure Schedules, 2012, except in none of the ordinary course of business, neither Seller nor Company or any of its Affiliates has: Subsidiary is (i) increased the compensation payable a party to any employment, consulting, non-compete, management, severance, retention, change of control, termination pay or to become payable to similar contract, agreement, arrangement or for the benefit of understanding with any of the Business EmployeesPerson, either express or implied, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorizationcurrently negotiating, or received notice from has any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect outstanding offer with respect to employment and employment practicesto, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decreearrangement, understanding or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, Schedule 4.15 sets forth (bi) location, a list of all present employees of the Seller-Controlled Entities (cthe “Business Employees”) date and independent contractors providing services to the Business; (ii) each Business Employee’s or independent contractor’s current rate of hire compensation; (and service start date if such date is different from date of hire), (diii) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of each Business Employee’s accrued vacation, sick daysleave, or personal days, float days and any other paid time offleave, if any. Since June 30, 2012, except in the ordinary course applicable; and (iv) a list of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any each Business Employee who is not legally eligible for employment under applicable immigration Lawsabsent from work due to a work-related injury, violated any applicable Laws pertaining to immigration and work authorizationis receiving workers’ compensation, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;is receiving disability compensation.
(b) been delinquent in payments Except as set forth on Schedule 4.15, (i) there are no unpaid wages, bonuses, or commissions owed to any Business Employee for Employee; (ii) all Business Employees are employees at-will, terminable on one-month’s notice or less without penalty; (iii) there are no outstanding agreements or arrangements with respect to severance payments to current Business Employees or former employees of any wages Seller-Controlled Entity; and (including overtime compensation)iv) no Seller-Controlled Entity has any Liability, salariescontingent or otherwise, commissions, bonuses under any Contract or other direct compensation for arrangement, plan, or program. Neither any services performed by them each Seller-Controlled Entity nor any their respective employees are now or in the past five (5) years have been subject to or involved in or, to Seller’s Knowledge threatened with, any amounts required to be reimbursed to such Business Employees;union elections, petitions therefor, or other organizational activities. There have been no employee layoffs or terminations or other events that, individually or collectively with the consummation of the Contemplated Transactions, could implicate the WARN Act.
(c) violated any Each Seller-Controlled Entity is and has been in compliance with all applicable Laws in any material respect with respect pertaining to employment and employment practices, terms including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and conditions termination of employment employees, working conditions, meal and wages break periods, privacy, health and hours safety, workers’ compensation, leaves of absence, and unemployment insurance. Each Seller-Controlled Entity has properly characterized and treated all Persons as independent contractors or consultants or exempt employees under all applicable Laws. There are no Actions against any Seller-Controlled Entity pending, or to Seller’s Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any Business Employeescurrent or former applicant, including employee, consultant, volunteer, intern, or independent contractor of any such Laws Seller-Controlled Entity, including, without limitation, any claim relating to wages unfair labor practices, employment discrimination, harassment, retaliation, equal pay, wage and hours, payment of wages, child labor, family and medical leave, access to facilities and or any other employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights related matter arising under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Andover National Corp)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleExcept as set forth on Schedule 4.11of the Schedules, Sellers (ba) locationhave no collective bargaining agreement, (c) date of hire (and service start date if such date is different from date of hire)employment agreement or any incentive compensation, (d) base compensation ratedeferred compensation, (e) commissionprofit sharing, bonus or other additional compensation benefit (including disability insurance, or the terms thereof, if determined pursuant to a scale death benefit) plan or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to arrangement with or for the benefit of any officer, employee or other person and (b) all employees of Sellers with respect to the Business (the “Business Employees”) are employed “at will.”
(b) Schedule 4.11 of the Schedules sets forth a complete and accurate list of the Business Employees, or showing each such individual’s name, position, location (ii) increasedidentified by city), augmented or improved benefits granted to or for the benefit date of any of the Business Employees under any Seller Benefit Plan. At any time in the last three yearshire, neither the Seller nor any of its Affiliates has:
annual remuneration (a) to Seller’s Knowledgeincluding allowances, employed any Business Employee who is not legally eligible for employment under applicable immigration Lawstarget bonuses and target commissions, violated any applicable Laws pertaining to immigration and work authorizationfees, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Lawsother compensation, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensationas applicable), salariesfull-time or part-time status, commissionsname of legal employer, bonuses status as exempt/non-exempt, retention arrangements, and visa or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;expiration date.
(c) violated any Laws in any material respect with With respect to employment the Business Employees, Sellers are, and employment practicesat all times have been, terms and conditions of employment and wages and hours in connection material compliance with all laws governing the employment of any Business Employeeslabor and the engagement of other service providers, reporting to the IRS and all other governmental entities, and the paying and withholding of taxes, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, all contractual commitments and all such laws relating to wages, hours, affirmative action, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation, reporting of compensation and benefits, and the U.S. Occupational Safety collection and Health Actpayment of income, 29 U.S.C. §§ 651employment and other taxes. No Seller has engaged in, et seq.authorized, or otherwise been involved in any unfair labor practice with respect to the Business Employees and past Seller employees of the Business.
(d) Sellers have, for the past three (3) years, complied in all material respects with the Workers Adjustment and Retraining Notification Act of 1989, as amended, and all applicable regulations promulgated by any Governmental Entity similar state or local laws (including the Occupational Health and Safety Administration (“OSHAWARN Act”) or comparable state agencies). There are currently with respect to the Business Employees, and, to Sellers’ knowledge, no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining their affiliates has any continuing liabilities under the WARN Act with respect to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasThe Company: (i) increased the compensation payable is, and at all times has been, in compliance with all applicable Legal Requirements, and with any order, ruling, decree, judgment or to become payable to or for the benefit arbitration award of any of the Business Employees, arbitrator or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses court or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and governmental body, respecting employment, employment practices, terms and conditions of employment and wages and employment, wages, hours in connection with the employment of any Business Employeesor other labor-related matters, including any such Laws Legal Requirements, orders, rulings, decrees, judgments and awards relating to discrimination, worker classification (including the proper classification of workers as independent contractors and consultants), wages and hours, payment labor relations, leave of absence requirements, occupational health and safety, privacy, harassment, retaliation, immigration, wrongful discharge or violation of the personal rights of Employees, former Employees or prospective Employees; (ii) has withheld and reported all amounts required by any Legal Requirement or contract to be withheld and reported with respect to wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans salaries and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts payments to any current Employee; (iii) has no liability for any arrears of wages or former Business Employees, however designated, any Taxes or any penalty for failure to comply with any employment Laws, or is party of the foregoing; and (iv) has no liability for any payment to any judgment, settlement agreement, consent decree, trust or other agreement fund governed by or maintained by or on behalf of any governmental body with respect to unemployment compensation benefits, social security or other benefits or obligations for any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened Employee (other than routine payments to be brought or filed by or made in the normal course of business and consistent with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited topast practice). Since 2009, the U.S. Occupational Safety Company has not effectuated a “mass layoff,” “plant closing,” partial “plant closing,” “relocation” or “termination” (each as defined in the Worker Adjustment and Health Retraining Notification Act (the “WARN Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies)any similar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company. There are currently Except as listed on Section 3.12(g) of the Company Disclosure Letter, no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any Employee of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates Company has been cited by any Governmental Entity (including OSHA discharged or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time has resigned in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity twelve (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f12) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsmonth period.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Employment Matters. Section 3.15 (a) Schedule 4.27 (Part A) sets forth a complete list of all Employees, whose current wages, salaries or hourly rates of pay, and bonus (whether monetary or otherwise) exceed $40,000 U.S., together with their titles, service dates and material terms of employment, including current wages, salaries or hourly rates of pay, and bonus (whether monetary or otherwise) paid since the beginning of the Seller Disclosure most recently completed fiscal year (including the date of payment if paid since *, 2001) or payable to each such Employee, the date upon which such wage, salary, rate or bonus became effective and the date upon which each such Employee was first hired by the Corporations. Except as disclosed in Schedule contains a true and complete listing 4.27, no Employee is on disability leave, pregnancy or parental leave, extended leave of absence or receiving benefits pursuant to the Laws.
(b) Except for those written employment contracts with salaried Employees identified in Schedule 4.27 (Part B), there are no written contracts of employment entered into with any Employees or any oral contracts of employment which are not terminable on the giving of reasonable notice in accordance with applicable law.
(c) There are no written or oral change of control provisions or Contracts with any of the names Employees which provide for any rights of Employees contingent upon or affected by a change of control of the Corporations or the sale of any or all of their assets.
(d) Schedule 4.27 (Part C) sets out a complete list of all Business Employeesindependent contractors with whom the Corporations has entered into any Contract, together with the following information as material terms of the date hereof all Contracts with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, them.
(e) commissionExcept for the Benefit Plans, bonus there are no employment policies or other additional compensation (or plans which are binding upon the terms thereof, if determined pursuant to a scale or formula), if any, Corporations.
(f) current employee statusThe Corporations have been and are being operated in full compliance with all Laws relating to employees, includingincluding employment standards, if on leaveoccupational health and safety, the type of leavehuman rights, labour relations and pay equity.
(g) hours of accrued vacationThere are no Claims or complaints nor, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in to the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any knowledge of the Business EmployeesVendors or the Corporations, are there any threatened Claims or (ii) increasedcomplaints, augmented or improved benefits granted to or for against the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments Corporations pursuant to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages employees, including employment standards, human rights, labour relations, occupational health and hourssafety, payment worker's compensation or pay equity. To the knowledge of wagesthe Vendors and the Corporations, child labor, family and medical leave, access nothing has occurred which might lead to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion a Claim or other classification protected by law or retaliation for exercise of rights complaint against the Corporations under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment such Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal outstanding decisions or informal actions, proceedings, controversies, grievances, charges, proceedings settlements or investigations against pending settlements which place any obligation upon the Seller Corporations to do or refrain from doing any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqact., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth All current assessments under workers' compensation legislation in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining relation to the Business Corporations have been paid or any Business Employees, accrued and Seller and its Affiliates the Corporations have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsspecial or penalty assessment under such legislation which has not been paid.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 (a) Schedule 5.10(a) of the Seller Disclosure Schedule contains a true attached hereto sets forth all employees of Seller involved primarily in the operation and complete listing business of AVRL whom have been identified by Buyer as potential hires for Buyer upon the names of all Business Closing (the “Specified Employees, together with the following information ”) as of the date hereof with respect to hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full or part time); (iii) date of hire date; (and service start date if such date is different from date of hire), (div) current annual base compensation rate, ; and (ev) commission, bonus or other additional compensation (or incentive-based compensation. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the terms thereof, if determined Securities and Exchange Commission pursuant to a scale Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(b) As of the date hereof, all compensation, including wages, commissions and bonuses payable to all employees of Seller who performed services for AVRL on or formula)prior to the date hereof (“Employees”) have been paid in full and there are no outstanding agreements, if anyunderstandings or commitments of Seller with respect to any compensation, (f) current employee statuscommissions or bonuses. Seller is and has been in compliance in all material respects with all applicable Laws pertaining to employment and employment practices to the extent they relate to the Employees, includingincluding all Laws relating to labor relations, if on leaveequal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence and unemployment insurance. To the type Knowledge of leaveSeller, all Employees all individuals characterized and (g) hours treated by Seller as consultants or independent contractors of accrued vacationAVRL are properly treated as independent contractors under all applicable Laws. To the Knowledge of Seller, sick daysall Employees classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified. There are no Actions against Seller pending, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Lawsthreatened in writing to be brought or filed, violated any applicable Laws pertaining to immigration and work authorization, by or received notice from with any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses Authority or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours arbitrator in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employeesapplicant, however designatedemployee, for failure consultant, volunteer, intern or independent contractor of AVRL, including, without limitation, any claim relating to comply with any unfair labor practices, employment Lawsdiscrimination, or is party to any judgmentharassment, settlement agreementretaliation, consent decreeequal pay, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller wages and hours or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, other employment related matter arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) There are no employment, consulting, severance or indemnification arrangements, arrangements which contain change of control provisions, agreements, or understandings between either Company and any officer, director, consultant or employee. Schedule 5.17(a) contains the names, job descriptions and annual salary rates and other compensation of all officers, directors, employees and consultants of each Company (including compensation paid or payable by such Company under the Plans (as hereafter defined)), and a list of all employee policies (written or otherwise), employee manuals or other written statements of rules or policies concerning employment, including working conditions, vacation and sick leave, a complete copy of each of which (or a description, if unwritten) has been delivered to Buyer.
(b) Each Company has complied with all applicable employment Laws, including payroll and related obligations, benefits, and social security, and does not have any obligation in respect of any amount due to employees of such Company or government agencies, other than normal salary, other fringe benefits and contributions accrued but not payable on the date hereof.
(c) Schedule 5.17(c) sets forth a complete list of all pension, retirement, share purchase, share bonus, share ownership, share option, profit sharing, savings, medical, disability, hospitalization, insurance, deferred compensation, bonus, incentive, welfare or any other material employee benefit plan, policy, agreement, commitment, arrangement or practice currently or previously maintained by each Company for any of its directors, officers, consultants, employees or former employees (the “Plans”). Without limiting the generality of Section 3.15 5.11, each Plan has been administered in accordance with its terms and applicable Law. With respect to the Plans, (i) no event has occurred and there exists no condition, facts or circumstances, which could give rise to any liability of either Company under the terms of such Plans or any applicable Law, (ii) each Company has paid or accrued all amounts required under applicable Law and any Plan to be paid as a contribution to each Plan through the date hereof, (iii) each Company has set aside adequate reserves to meet contributions which are not yet due under any Plan, (iv) the fair market value of the Seller Disclosure Schedule contains a true and complete listing assets of each funded Plan, the names liability of all Business Employeeseach insurer for any Plan funded through insurance or the book reserve established for any Plan, together with accrued contributions, is sufficient to procure or provide for the following information accrued benefit obligations, as of the date hereof Closing Date, with respect to all current and former participants in such Plan according to the actuarial assumptions and valuations most recently used to determine employee contributions to such Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations, and (v) each such employee: (a) job titlePlan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities. On or after the date hereof, no Plan has been, or will be, (bi) locationterminated, (cii) date amended in any manner which would directly or indirectly increase the benefits accrued, or which may be accrued, by any participant thereunder or (iii) amended in any manner which would materially increase the cost to either Company or Buyer of hire (and service start date if maintaining such date is different from date Plan. No Plan provides retiree medical or retiree insurance benefits to any Person. Except as disclosed or noted in the Financial Statements, there are no amounts due or owing to any employee of hire)either Company for any accrued salary, (d) base remuneration, compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee statusand/or benefit, including, if on leavewithout limitation, the type of leave, and (g) hours of amounts due for accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable leave or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains (a) The Company has delivered to Parent a true and complete listing of the names of all Business current and former Employees, together the only two being Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx, and the Consultants, including their respective locations. Other than as fully reflected or specifically reserved against in accordance with GAAP in the following information Financial Statements (or as of otherwise expressly permitted or required pursuant to this Agreement), neither the date hereof with respect Company nor any Holder has paid or promised to each such employee: (a) job titlepay any bonuses, commissions or incentives to any Employee or Consultant.
(b) location, (c) date The Company has paid to each applicable Employee the entire amount of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula)bonus, if any, (f) current employee statusearned by such Employee for the year ended December 31, including, if on leave, the type of leave2017, and (g) hours no remaining bonus amounts for the year ended December 31, 2017, payable to any Employee, remain unpaid as of the Closing Date. All amounts earned through the Closing Date have been properly accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except reflected in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;Financial Statements; and
(c) violated Since the Company’s inception, (i) the Company has paid or made provision for payment of all salaries and wages, which are payable by the Company to any Laws Employees, accrued through the Closing Date and is in any compliance in all material respect respects with respect to all applicable laws respecting employment and employment practices, terms and conditions of employment employment, collective bargaining, immigration, wages, hours and wages benefits, non-discrimination in employment, workers compensation, the collection and hours in connection with the employment payment of any Business Employeeswithholding and/or payroll Taxes and similar Taxes, including any such Laws relating to wages and hours, payment Title VII of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise the Civil Rights Act of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to1964, the U.S. Occupational Safety and Health Age Discrimination in Employment Act of 1967, the Equal Employment Opportunity Act of 1972, ERISA, the Equal Pay Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act, the Fair Labor Standards Act, the Americans with Disabilities Act as amendedof 1990, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with the Vietnam Era Veterans Reemployment Act, the Family and Medical Leave Act and any Governmental Entity alleging any violations of and all similar applicable labor Laws pending against state and local Laws; and (ii) the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have Company has not been subject to engaged in any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsunfair employment practice.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Cerecor Inc.)
Employment Matters. (a) Section 3.15 4.17(a) of the Seller Disclosure Company Schedule contains of Exceptions sets forth a true and complete listing list of the names of all Business EmployeesCompany Employees and Company Consultants, together with the following information as of the date hereof along with respect to each such employeePerson’s: (i) redacted name; (ii) job title or function; (iii) job location; (iv) current salary (or other fixed or variable payment including overtime payment); and (v) full or part time status, and concerning each Company Employee, such Person’s (a) job title, accrued annual leave days; (b) location, bonus payments or incentives; (c) date of hire (pension contributions for savings and service start date if such date is different from date of hire), severance; (d) base compensation rate, recuperation payments; (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, accrued sick days; (f) current employee status, including, if on leave, the type of leave, travel allowance; and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;study fund.
(b) been delinquent The Company has disclosed to the Parent a list of the correct and complete versions of the standard form contracts of employment, offer letters and consultancy agreements used in payments to any Business Employee respect of Company Employees and Company Consultants along with a list of those Company Employees and Company Consultants in respect whom their employment or engagement terms are provided for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;in a form containing material deviations from the standard forms.
(c) violated Except as set forth in Section 4.17(c) of the Company Schedule of Exceptions no Company Employee benefits from any enhanced entitlement to receive redundancy or severance pay on terms that are more generous that the minimum required by applicable Laws or those contained in the contracts of employment referred to in 4.17(c) above.
(d) Except as set forth in Section 4.17(d) of the Company Schedule of Exceptions, each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws and Orders with respect to labor and employment (for the avoidance of doubt, any criminal implications are considered to be material for this purpose) including, without limitation the Notice to Employee (Terms of Employment) Law, 2002, the Hours of Work and Rest Law, 1951, the Annual Leave Law, 1951, the Sick Pay Law, 1976, the Employment by Human Resource Contractors Law, 1996, the Salary Protection Law, 1958, the Minimum Wage Law, 1987, the Law of Increased Enforcement of Labor Laws, 2011, the Prior Notice to the Employee Law, 2002, the Prevention of Sexual Harassment Law, 1998, The Employment of Women Law 1954, and applicable expansion orders concerning travel [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential. allowance, and recuperation payments. All Israeli Company Employees are, and all former Israeli employees of the Company were, subject to the Section 14 Arrangement under the Israeli Severance Pay Law (1963) (“Section 14 Arrangement”) during their entire period of engagement with the applicable Group Company and such Section 14 Arrangement was properly applied in accordance with the terms of the general permit (1998) issued by the Israeli Labor Minister regarding such employees based on their full salaries and applicable compensation and from their commencement date of employment and such Group Company has made the required contributions to pension arrangements and/or any other provident fund (including further education fund, loss of disability insurance, etc.). The obligations of the applicable Group Company to provide statutory severance pay to the Israeli Company Employees pursuant to the Israeli Severance Pay Law (5723-1963) are fully funded or accrued in the applicable Group Company’s financial statements and in the Financial Information. In the three (3) years preceding the date of this Agreement (and up to the Closing Date), there has been no strike, work stoppage or other material labor dispute, or material arbitration, pending or threatened in writing, that may interfere in any material respect with the respective business activities of the Company or any of its Subsidiaries.
(e) Except as set forth in Section 4.17(e) of the Company Schedule of Exceptions, no Company Employee is represented by any labor union or other labor representative with respect to his or her employment with the Company or any of its Subsidiaries and there are no labor, collective bargaining, works council or other similar organization agreements or similar arrangements binding on the Company or any of its Subsidiaries with respect to any Company Employee. To the Company’s Knowledge, there are no Persons attempting to represent or organize or purporting to represent for bargaining purposes any Company Employee. No labor union has requested or has sought to represent any of the Company Employees, representatives or agents of the Company or any Subsidiary, and neither the Company nor any Subsidiary has received any notice concerning the establishment of labor unionization.
(f) The consummation of the Merger will not require the consent of, or notification to, any labor union or any other similar employees’ organization.
(g) To the Company’s Knowledge, no Company Employee or Company Consultant has violated any term of his or her employment practicesor service agreement. Each Company Employee and Company Consultant and former employees, terms consultants, and conditions independent contractors of employment the Company or any Subsidiary has (i) executed an agreement with a Group Company regarding confidentiality and wages proprietary information and hours has assigned works and/or inventions that are created or developed in connection with his or her engagement to the employment applicable Group Company, and (ii) executed a non-competition and non-solicitation agreement in favor of such Group Company. To the Company's Knowledge, no Company Employee or Company Consultant, and no former employees, consultants or independent contractors of the Company is in violation of any Business Employeesagreement covered by this subsection (e).
(h) No labor or employment-related dispute or claim is pending, outstanding or threatened against the Company or any of its Subsidiaries, including any such Laws relating to wages and hours, payment action filed by or on behalf of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, Company Employee or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqCompany Consultant., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strikeAll compensation, work slowdownincluding wages, other material work stoppagecommissions, picketingbonuses and benefits, handbillingpayable to all Company Employees and Company Consultants to the extent due, or bannering due has been paid in full which have been properly accrued, and there are no outstanding amounts owed to any organizing activities Company Employee or other Company Consultants. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material labor dispute pending or, to Seller’s Knowledge, threatened against and (ii) the Business;
(j) recognized any labor organization type that the Registrant treats as the representative of any Business Employees, received any demand for recognition from any labor organization, private or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsconfidential.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Section 3.15 4.17(a) of the Seller Disclosure Company Schedule contains of Exceptions sets forth a true and complete listing list of the names of all Business EmployeesCompany Employees and Company Consultants, together with the following information as of the date hereof along with respect to each such employeePerson’s: (i) redacted name; (ii) job title or function; (iii) job location; (iv) current salary (or other fixed or variable payment including overtime payment); and (v) full or part time status, and concerning each Company Employee, such Person’s (a) job title, accrued annual leave days; (b) location, bonus payments or incentives; (c) date of hire (pension contributions for savings and service start date if such date is different from date of hire), severance; (d) base compensation rate, recuperation payments; (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, accrued sick days; (f) current employee status, including, if on leave, the type of leave, travel allowance; and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;study fund.
(b) been delinquent The Company has disclosed to the Parent a list of the correct and complete versions of the standard form contracts of employment, offer letters and consultancy agreements used in payments to any Business Employee respect of Company Employees and Company Consultants along with a list of those Company Employees and Company Consultants in respect whom their employment or engagement terms are provided for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;in a form containing material deviations from the standard forms.
(c) violated Except as set forth in Section 4.17(c) of the Company Schedule of Exceptions no Company Employee benefits from any enhanced entitlement to receive redundancy or severance pay on terms that are more generous that the minimum required by applicable Laws or those contained in the contracts of employment referred to in 4.17(c) above.
(d) Except as set forth in Section 4.17(d) of the Company Schedule of Exceptions, each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws and Orders with respect to labor and employment (for the avoidance of doubt, any criminal implications are considered to be material for this purpose) including, without limitation the Notice to Employee (Terms of Employment) Law, 2002, the Hours of Work and Rest Law, 1951, the Annual Leave Law, 1951, the Sick Pay Law, 1976, the Employment by Human Resource Contractors Law, 1996, the Salary Protection Law, 1958, the Minimum Wage Law, 1987, the Law of Increased Enforcement of Labor Laws, 2011, the Prior Notice to the Employee Law, 2002, the Prevention of Sexual Harassment Law, 1998, The Employment of Women Law 1954, and applicable expansion orders concerning travel [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential. allowance, and recuperation payments. All Israeli Company Employees are, and all former Israeli employees of the Company were, subject to the Section 14 Arrangement under the Israeli Severance Pay Law (1963) (“Section 14 Arrangement”) during their entire period of engagement with the applicable Group Company and such Section 14 Arrangement was properly applied in accordance with the terms of the general permit (1998) issued by the Israeli Labor Minister regarding such employees based on their full salaries and applicable compensation and from their commencement date of employment and such Group Company has made the required contributions to pension arrangements and/or any other provident fund (including further education fund, loss of disability insurance, etc.). The obligations of the applicable Group Company to provide statutory severance pay to the Israeli Company Employees pursuant to the Israeli Severance Pay Law (5723-1963) are fully funded or accrued in the applicable Group Company’s financial statements and in the Financial Information. In the three (3) years preceding the date of this Agreement (and up to the Closing Date), there has been no strike, work stoppage or other material labor dispute, or material arbitration, pending or threatened in writing, that may interfere in any material respect with the respective business activities of the Company or any of its Subsidiaries.
(e) Except as set forth in Section 4.17(e) of the Company Schedule of Exceptions, no Company Employee is represented by any labor union or other labor representative with respect to his or her employment with the Company or any of its Subsidiaries and there are no labor, collective bargaining, works council or other similar organization agreements or similar arrangements binding on the Company or any of its Subsidiaries with respect to any Company Employee. To the Company’s Knowledge, there are no Persons attempting to represent or organize or purporting to represent for bargaining purposes any Company Employee. No labor union has requested or has sought to represent any of the Company Employees, representatives or agents of the Company or any Subsidiary, and neither the Company nor any Subsidiary has received any notice concerning the establishment of labor unionization.
(f) The consummation of the Merger will not require the consent of, or notification to, any labor union or any other similar employees’ organization.
(g) To the Company’s Knowledge, no Company Employee or Company Consultant has violated any term of his or her employment practicesor service agreement. Each Company Employee and Company Consultant and former employees, terms consultants, and conditions independent contractors of employment the Company or any Subsidiary has (i) executed an agreement with a Group Company regarding confidentiality and wages proprietary information and hours has assigned works and/or inventions that are created or developed in connection with his or her engagement to the employment applicable Group Company, and (ii) executed a non-competition and non-solicitation agreement in favor of such Group Company. To the Company’s Knowledge, no Company Employee or Company Consultant, and no former employees, consultants or independent contractors of the Company is in violation of any Business Employeesagreement covered by this subsection (e).
(h) No labor or employment-related dispute or claim is pending, outstanding or threatened against the Company or any of its Subsidiaries, including any such Laws relating to wages and hours, payment action filed by or on behalf of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, Company Employee or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqCompany Consultant., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strikeAll compensation, work slowdownincluding wages, other material work stoppagecommissions, picketingbonuses and benefits, handbillingpayable to all Company Employees and Company Consultants to the extent due, or bannering due has been paid in full which have been properly accrued, and there are no outstanding amounts owed to any organizing activities Company Employee or other Company Consultants. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material labor dispute pending or, to Seller’s Knowledge, threatened against and (ii) the Business;
(j) recognized any labor organization type that the Registrant treats as the representative of any Business Employees, received any demand for recognition from any labor organization, private or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsconfidential.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Section 3.15 4.21(a) of the Seller Disclosure Schedule contains Schedules sets forth, with respect to the Company Group, a true and complete listing list of the names of all Persons who are employees or that are otherwise engaged in the Business (collectively, the “Company Group Employees”) and independent contractors of the Company Group as of the date hereof, together specifying: each such Person’s name, job title or function and job location, as well as a true, correct and complete listing of his or her current and prior calendar year salary or wage payable by the applicable member of the Company Group, the amount of all incentive compensation paid or payable to such Person for the current and prior calendar year, the amount of accrued but unused vacation time and/or paid time off, each as of the date hereof, whether such Person is on an employer-sponsored non-immigrant visa and if so, the type and expiration date, and each Person’s current status (as to leave or disability status and full time or part time, exempt or nonexempt and temporary or permanent status). Except as identified on Section 4.21(a) of the Disclosure Schedules, no member of the Company Group has not paid or promised to pay any bonuses, commissions or incentives to any Company Group Employee, including any officer, manager or director. Each Person who provides services to the Company is: (i) properly classified as an independent contractor or employee, (ii) properly classified as “exempt” or “non-exempt” from overtime requirements under all applicable Laws, if an employee, (iii) properly classified with respect to employment status for all purposes, including social security contributions and Tax purposes and (iv) if required to have a work permit or other permission under applicable immigration Laws in the relevant jurisdiction in which they are providing services, has a current work permit or other permission and all necessary permission to remain in the relevant jurisdiction and none of such permits or permissions will be affected as a result of the matters contemplated herein. To Stockholders’ Knowledge, no officer or Company Group Employee at the level of manager or higher, and no independent contractor or leased employee whose departure would materially disrupt the operations of the Business has disclosed any plans to terminate his or her employment or relationship with the following information Company Group.
(b) Section 4.21(b) of the Disclosure Schedules sets forth a true and complete list as of the date hereof with respect to of each such separate written employment, consulting, severance, retention, indemnification, termination or change-of-control Contract between the Company Group and any individual employee: , officer, director, or other Representative of the Company Group (a) job titlecollectively, (b) location, the “Existing Employment Agreements”).
(c) date The Company Group has paid or made provisions for payment of hire (all salaries, wages, social security contributions, accrued overtime, vacation and/or holiday pay, which are payable by the applicable member of the Company Group to its Company Group Employees and service start date if such date leased employees, accrued through the Closing Date and to Stockholders’ Knowledge, neither the Company Group nor the Business is different from date engaged in any unfair labor practices. The Company Group further has paid or made provisions for payment of hire)all compensation and fees, which are payable by the applicable member of the Company Group, to all its independent contractors and consultants, accrued through the Closing Date.
(d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: The Company Group (i) increased the compensation payable or to become payable to or for the benefit of is not delinquent in any of the Business Employeespayments to, or (ii) increasedon behalf of, augmented any current or improved benefits granted to former independent contractors or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation employees for any services performed by them or any amounts required to be reimbursed to such Business Employees;
or otherwise paid as of the Closing Date, and (cii) violated any Laws in any material respect is not a joint employer, single employer or co-employer with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment or an alter ego of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;Person as defined herein.
(e) materially violated The Company Group has withheld and reported all amounts required by Law to be withheld and reported with respect to wages, salaries and other payments to current and former employees and independent contractors of the Company Group. The Company Group has no liability or obligation for any Laws regulating occupational safety and health includingfines, but not limited toTaxes, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq.interest, or applicable regulations promulgated by other penalties for any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) failure to pay or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws delinquency in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;paying such compensation.
(f) implemented any plant closing, mass layoff (i) No member of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been Company Group is a party to, or bound by, any Collective Bargaining Agreement, effects collective bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any a labor organization representing any Business of its Employees;, (ii) no union, labor organization, or group of employees of the Company has made a pending demand for recognition, and there are no representation Proceeding or petitions seeking a representation Proceeding presently pending or, to the Knowledge of Stockholders, threatened to be brought or filed with the National Labor Relations Board or other labor relations tribunal and (iii) since the Lookback Date, there has not been, or to Stockholders’ Knowledge has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting the Company Group. To Stockholders’ Knowledge, no petition has been filed nor has any proceeding been instituted by any Company Group Employee or group of Company Group Employees with the National Labor Relations Board or similar Governmental Authority seeking recognition of a collective bargaining agreement. To Stockholders’ Knowledge, there are no Persons attempting to represent or organize or purporting to represent for bargaining purposes any of the Company Group Employees.
(g) Each of the members of the Company Group is in compliance with all applicable Laws pertaining to employment and employment practices, including provisions thereof relating to wages, hours, equal opportunity, discrimination, harassment, collective bargaining, immigration, verification of work authorization, and the payment of social security and other Taxes, to the extent they relate to Company Group Employees. Except as would not have a Material Adverse Effect, there are no actions, suits, claims, investigations or other legal Proceedings against the Company Group pending, or to Stockholders’ Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitral tribunal in connection with the employment or termination of employment of any current or former employee of the Company Group, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay or any other employment related matter arising under applicable Laws. The Company Group has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Law to conduct an investigation with respect to or relating to employees' compliance with or an alleged violation or breach of any Company Group policy or practice, or any policy or practice of the Business, or Law applicable thereto and, to Stockholders’ Knowledge, no such investigation is in progress.
(h) except The execution and delivery of this Agreement and the performance of this Agreement do not require the Company Group to seek or obtain any consent, engage in consultation with, or issue any notice to or make any filing with (as set forth in 3.15(happlicable) any unions, labor organizations, or groups of employees of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business EmployeesCompany Group, or any effects bargaining agreementGovernmental Authority, neutrality or card-check recognition agreement, or other labor agreement;with respect to any employee of the Company Group.
(i) experienced any strikeThere has been no “mass layoff” or “plant closings” (each as defined under the WARN Act), work slowdownrelocations, other material work stoppagelayoffs, picketing, handbillingfurloughs, or bannering due to any organizing activities other employment losses that triggered or other material labor dispute pending orcould trigger notice or otherwise implicate the WARN Act, to Seller’s Knowledgeand no such events are currently planned, threatened against the Business;anticipated or announced.
(j) recognized any labor organization as The Company has made available to Buyer the representative of any Business EmployeesU.S. Citizenship and Immigration Services Form I-9 (Employment Eligibility Verification) and all other records, received any demand for recognition from any labor organizationdocuments, or been party other papers that are required to any petition be retained with Form I-9 by the Company Group, including E-Verify reports, that it has in its records for recognition or representation rights with any Governmental Entity with respect to any Business Employees; oreach Company Group Employee located in the United States.
(k) committed Each employee of the Company Group is legally authorized to work in the jurisdiction in which they are employed. The Company Group has not, since the Lookback Date, received any violation in correspondence from any material respect Governmental Authority questioning the validity of the social security number or work authorization of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 employee of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsCompany Group.
(l) Section 3.15(l) The Company Group has taken reasonable efforts to promptly, thoroughly and impartially investigate all sexual harassment, or other discrimination or retaliation policy violation allegations of which Stockholders have Knowledge. With respect to each such allegation, the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller Company Group has taken prompt, lawful action that is reasonably calculated to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)comply with applicable Laws. The Company Group does not reasonably expect any liabilities or obligations with respect to any such allegations.
Appears in 1 contract
Samples: Stock Purchase Agreement (EnerSys)
Employment Matters. (a) Section 3.15 3.26 of the Seller Vendor’s Disclosure Schedule contains Letter sets forth a true complete and complete listing of the names accurate list of all Business Employees, together with their titles, service dates and material terms of employment, including current wages, salaries or hourly rate of pay, benefits, vacation entitlement, commissions and bonus (whether monetary or otherwise) or other material compensation paid since the following information as beginning of the most recently completed fiscal year (including the date hereof with respect of payment if paid since September 30, 2016) or payable to each such employee: (a) job title, (b) location, (c) Employee and the date upon which each such term of employment became effective if it became effective in the 12 month period prior to the date of hire (this Agreement. Section 3.26 of the Vendor’s Disclosure Letter also lists Employees on inactive status, including lay-off, short-term disability leave, long-term disability leave, pregnancy and service start date if such date is different from parental leave or other extended absences, or receiving benefits pursuant to workers’ compensation legislation, and specifies the last date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leaveactive employment, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or reason for the benefit absence and the expected date of any return of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;each such Employee.
(b) Current and complete copies of all Employment Contracts or, where oral, written summaries of the terms of the Employment Contracts have been delinquent delivered or made available to the Purchaser. There are no Employment Contracts which are not terminable on the giving of reasonable notice in payments accordance with applicable Law, nor are there any Employment Contracts providing for cash, other compensation, benefits or contingent rights on Closing. To the knowledge of the Asset Vendor, no executive employed in the Business has provided any written notice of his intent to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses terminate his or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;her employment.
(c) violated There are no Claims, pending Claims nor, to the knowledge of the Asset Vendor, threatened Claims pursuant to any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages the Employees or former employees, including employment standards, human rights, labour relations, occupational health and hours, payment safety and workers’ compensation.
(d) All current assessments under workers’ compensation legislation in relation to the Business and all of wages, child labor, family the Asset Vendor’s contractors and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion subcontractors have been paid or other classification protected accrued by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practicesthe Asset Vendor. The Business has filed not been and maintained all records is not subject to any additional or penalty assessment under such legislation which has not been paid and reports pertaining to equal employment opportunities required under applicable employment Laws including but has not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment given notice of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqaudit., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Purchase Agreement
Employment Matters. Section 3.15 (a) The Sellers have previously provided the Purchaser a correct and complete list, on an anonymized basis, of the following with respect to each Employee of the Business as of September 9, 2016: (i) base salary (or other base rate of pay) as of such date and as of October 1, 2016, (ii) all variable compensation, including 2016 bonus entitlement and any sales commission or other incentive pay entitlements, (iii) all equity grants made during 2015 and 2016, (iv) continuous service date (including credited years of service recognized by the Sellers), (v) primary geographic location of employment (city and country) and (vi) whether such Employee of the Business is active or on leave of absence (and whether such leave of absence is due to medical disability or otherwise).
(b) Except as set forth on Schedule 3.14(b) of the Seller Disclosure Schedule contains a true and complete listing Schedule, each member of the names of all Business Employees, together with Seller Group and the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasAcquired Company: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time has been in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any compliance in all material respects with all applicable Laws pertaining to immigration and work authorizationrespecting employment, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages employment practices (including overtime compensationhealth and safety regulations), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practicesimmigration, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wagesin each case, child labor, family and medical leave, access with respect to facilities and employment opportunities for disabled persons, employment discrimination the Transferred Employees; (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected ii) has withheld all amounts required by law or retaliation for exercise of rights under applicable Law)by agreement to be withheld from the wages, equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans salaries and other similar records;
payments to the Transferred Employees; (diii) been other than in respect of ordinary compensation and payroll practices, is not liable for any arrears of wages with respect to the Transferred Employees; and (iv) is not liable for any material payment of to any claims, damages, fines, penalties, trust or other amounts fund or to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance with respect to unemployment compensation benefits, social security or reporting other benefits or obligations entered into for the Transferred Employees (other than routine payments to resolve any labor or employment matterbe made in the normal course of business and consistent with past practice). There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against The Acquired Company and each member of the Seller or any of its Affiliates pertaining Group is, with respect to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out ofthe Transferred Employees, in connection withcompliance in all material respects with the terms and provisions of the Immigration Reform and Control Act of 1986, or otherwise relating to alleged violation of any employment Laws;as amended.
(ec) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except Except as set forth in 3.15(hon Schedule 3.14(c) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business respect to the Transferred Employees, no member of the Seller Group or any effects bargaining agreementAcquired Company is a party to, neutrality or card-check recognition agreementbound by, or other labor agreement;
(i) experienced negotiating any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities collective bargaining agreement or other material Contract with a union, works council or labor dispute organization. No work stoppage or labor strike by the Transferred Employees is pending or, to Seller’s Knowledgethe Knowledge of the Sellers, threatened against or anticipated. To the Business;
(j) recognized Knowledge of the Sellers, there are no activities or proceedings of any labor organization union to organize any Transferred Employees. Except as set forth on Schedule 3.14(c) of the representative Seller Disclosure Schedule, there are no actions, suits, claims, labor disputes, grievances or other Legal Proceeding pending or, to the Knowledge of any Business Employeesthe Sellers, received any demand for recognition from any labor organization, or been party threatened in writing relating to any petition for recognition labor, safety or representation rights with discrimination matters involving any Governmental Entity with respect to any Business Employees; or
(k) committed any violation Transferred Employee, including charges of unfair labor practices or discrimination complaints, which, if adversely determined, would, individually or in the aggregate, result in any material liability to the any member of the Seller Group or the Acquired Company. With respect to the Business, no member of the Seller Group nor the Acquired Company has engaged in any unfair labor Laws of any jurisdiction where practices within the Business Employees are employed, including any violations of Section 8 meaning of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsAct.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Bill of Sale
Employment Matters. (a) Section 3.15 5.18(a) of the Seller Seller’s Disclosure Schedule contains sets forth a true and complete listing list of each employee of the names Company (including any employee who is on a leave of all Business Employeesabsence or on layoff status) and each individual engaged by the Company as an independent contractor, together with containing the following information information: (i) to the extent permitted by Law, the name, title or classification of each employee or independent contractor; (ii) to the extent permitted by Law, the aggregate dollar amounts of the compensation (including wages, salary, commissions, director’s fees, fringe benefits, bonuses, profit sharing payments, and other payments or benefits of any type) received by each employee or independent contractor from the Company with respect to services performed in calendar year 2023 and year to date 2024; (iii) to the extent permitted by Law, each employee’s or independent contractor’s current annualized compensation, hourly wage rate or remuneration, as applicable; (iv) the number of hours of sick-time that each employee has accrued as of the date hereof with respect to of this Agreement and the aggregate dollar amount thereof; (v) the number of hours of vacation time or paid time off that each such employee: employee has accrued and the aggregate dollar amount thereof; (avi) job titlethe length of employment; (vii) status of each employee as full-time or part-time and exempt or non-exempt, and (viii) whether the employee is receiving workers compensation or disability payments or is on leave or layoff status and, if so, the anticipated date of return.
(b) locationTo the Seller’s Knowledge, the Company has at all times complied, in all material respects, with all applicable Laws regarding labor and employment, including but not limited to the National Labor Relations Act, the Family and Medical Leave Act, employment discrimination laws, wage and hour laws, employment standards legislation and wage payment laws and occupational health and safety (including but not limited to any such obligations it may have under applicable Laws or any Contract to any employees providing services to the Company through a third party). The Company has (i) timely paid in full to all Company employees all wages and other compensation (including overtime compensation and compensation for meal periods and rest breaks) as required by all applicable Laws, in all material respects, (ii) timely paid in full to all Company employees all reimbursement of expenses as required by all applicable Laws, in all material respects, and (iii) properly reported to all Company employees (by pay stub, wage statement, or otherwise) their wages in accordance with all applicable Laws, in all material respects.
(c) date All individuals who perform services for the Company have been classified correctly, including in accordance with the terms of hire each Benefit Plan and ERISA, the Code, the Fair Labor Standards Act, and all other applicable Laws, as exempt employees, non-exempt employees, independent contractors, or leased employees, and the Company has not received written (and service start date if such date is different or to the Knowledge of Seller, verbal or otherwise) notice to the contrary from date of hire), any Person or Governmental Entity.
(d) base compensation rateThe employment of each Company employee is terminable by the Company at will and no employee is entitled to severance pay or other benefits following termination or resignation, except as otherwise required by Law or any Benefit Plan set forth or required to be set forth on Section 5.17(a) of Seller’s Disclosure Schedule. Seller has made available to Purchaser accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of the current and former employees of the Company and the Company is in material compliance with each of the foregoing.
(e) commissionThere has not been pending or existing during the 3-year period preceding the date of this Agreement any strike, bonus slowdown, work stoppage or other additional compensation (or lockout involving the terms thereof, if determined pursuant to a scale or formula), if any, Company.
(f) current employee statusAs of the date of this Agreement, includingto the Knowledge of Seller, if on leave, there is no unfair labor practice charge or complaint against the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: Company pending before (i) increased the compensation payable or to become payable to or for the benefit of any of the Business EmployeesNational Labor Relations Board, or (ii) increasedsimilar Governmental Entity outside of the United States, augmented and to the Knowledge of Seller, no such charge or improved benefits granted complaint has been made against the Company during the 3-year period preceding the date of this Agreement.
(g) To the Knowledge of Seller, no Seller, executive officer of the Company, or salaried Employee of the Company of a seniority level that reports directly to Seller or for any such executive officer: (i) intends to terminate his or her relationship with the benefit Company, or (ii) has received an offer to join a business that may be competitive with the business of the Company.
(h) The Company is not now, nor has it ever been, a party to any collective-bargaining agreement, neutrality agreement, or other Contract of any of kind with a labor union or labor organization, or party to any representation proceeding before the Business Employees under National Labor Relations Board, or subject to any Seller Benefit Plan. At duty to bargain with any time in labor union or labor organization, and there has not been within the last three years, neither and is not now any labor union organizing activity pending or, to the Seller nor any Knowledge of its Affiliates has:Seller, threatened with respect to the Company.
(ai) To the Knowledge of Seller, (i) there has been no complaint or charge of discrimination or harassment (including sexual harassment) made, filed or threatened against the Company or Employee (in such Employee’s capacity as an employee of the Company) with the Equal Employment Opportunity Commission or similar Governmental Entity during the last three years prior to the date of this Agreement; and (ii) no reasonable basis in fact or circumstances exists for the assertion of any such claim described in clause (i).
(j) The Company has not experienced a “plant closing,” “business closing,” or “mass layoff” or similar group employment loss as defined in the federal Worker Adjustment and Retraining Notification Act (“WARN Act”) or any other applicable Law affecting any site of employment of the Company or one or more facilities or operating units within any site of employment or facility of the Company. During the 90-day period preceding the date of this Agreement, no employee has suffered an “employment loss” as defined in the WARN Act or any other applicable Laws with respect to the Company.
(k) To the Seller’s Knowledge, employed any Business Employee who the Company is not legally eligible for employment under applicable immigration Laws, violated any in compliance in all material respects with the requirements of all applicable Laws pertaining to immigration and work authorizationregarding immigration, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reportsthe requirements under the federal Immigration Reform and Control Act of 1986 regarding verification of employment eligibility, affirmative action plans and other similar records;
(d) been liable for the payment of any claimsdocumentation fraud, damagesdocument retention, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Businessnon-discrimination, and neither Seller nor any the prohibition against knowing employment of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time workers who are not authorized to work in the last five yearsUnited States. Seller The Company has on file a valid and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage current I-9 form for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strikeall current employees hired since November 6, work slowdown1986, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
and (jii) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining all former employees whose employment commenced less than three years prior to the Business date of this Agreement or any Business Employees, and Seller and its Affiliates have not been subject terminated less than one year prior to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations date of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleEach USCC Entity and Affiliate thereof (A) is in compliance in all material respects with all applicable foreign, (b) locationfederal, (c) date of hire (state and service start date if such date is different from date of hire)local Laws respecting employment, (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours with respect to employees employed in connection with operating the USCC System or former employees during their employment in operating the USCC System; (B) has provided for the withholding of all amounts required by Law or by agreement to be withheld from the wages, salaries and other payments to such employees; (C) is not liable for any Business Employees, including any such Laws relating to wages and hours, payment arrears of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination any other compensation or benefits (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion vacation or other classification protected by law severance pay) or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining any taxes related to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of USCC System or any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, penalty for failure to comply with any employment Laws, or of the foregoing; and (D) is party not liable for any payment to any judgment, settlement agreement, consent decree, trust or other agreement with fund or to any Governmental Entity requiring continuing compliance Authority, with respect to unemployment compensation benefits, social security or reporting other benefits or obligations entered into for such employees (other than routine payments to resolve any labor or employment matterbe made in the normal course of business and consistent with past practice). There Except as set forth on Schedule 4.15(a), to USCC’s Knowledge, there are no formal or informal actions, proceedings, controversies, grievancespending claims, charges, proceedings actions, investigations or investigations lawsuits filed against the Seller a USCC Entity or USCC Newco with any court or any Governmental Authority involving the employment of its Affiliates or termination of any current or former employees pertaining to their involvement in the operation of the USCC System. Except as set forth on Schedule 4.15(a), to USCC’s Knowledge: (i) there are no such claims, charges, actions, investigations or lawsuits threatened, and (ii) no facts exist which could give rise to liability to any Business Employees current or former employees involved in the operation of the USCC System.
(b) For each employee directly employed in operating the USCC System, Schedule 4.15(b) sets forth as of the date hereof the name, position, market location, date of hire, current annual salary, hourly rate of pay, commission and/or bonus arrangement (as applicable), service credited for purposes of vesting and eligibility under any USCC System Employee Plan, the current status of the employee as either active or on leave and if on leave, the type of leave, and the amount of the last salary or rate of pay increase and the date thereof of all active employees and all inactive employees on leave or other inactive status, in each case employed by a USCC Entity, USCC Newco or any Affiliate thereof in the operation of the USCC System. None of the USCC Entities, USCC Newco or any Affiliate thereof is a party to, nor is bound by, any contracts or employment agreements with respect to employees or officers engaged, to any extent, in the operation of the USCC System.
(c) To USCC’s Knowledge: (i) any individual engaged by a USCC Entity, USCC Newco or an Affiliate thereof as an independent contractor in connection with the USCC System has been accurately classified as an independent contractor for all purposes, including payroll tax, withholding, unemployment insurance and benefits, and (ii) none of the USCC Entities, USCC Newco or any Affiliate thereof has received notice of any pending or to Seller’s Knowledge threatened to be brought or filed by or with inquiry from any Governmental Entity or arbitrator based on, arising out of, in connection withAuthority concerning such independent contractor status, or otherwise relating any pending or threatened claim by any party that any such independent contractor be reclassified as an employee for any purpose.
(d) On or prior to alleged violation the Closing Date, USCC shall provide ALLTEL a list of any the former employees who performed services for the USCC System at a location in the USCC Service Area and have terminated employment Laws;due to lay-off or position elimination during the 90 calendar day period preceding the Closing Date with their position and work location at time of termination, except for terminations of employment pursuant to Section 6.1(a), and a list of the total number of employees employed at each work location in the USCC Service Area as of the Closing Date.
(e) materially violated any Laws regulating occupational safety and health includingThere are no employment, but not limited toseverance or similar agreements which are binding on ALLTEL or an Affiliate thereof, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., including USCC Newco after Closing (as a successor employer or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”otherwise) or comparable state agencies). There are currently no citations which will create any obligation whatsoever after the Closing on the part of ALLTEL or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)an Affiliate thereof, including OSHA-300 injury logs. FurtherUSCC Newco after Closing, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by employee, manager, agent, contractor or officer of the Buyer following the Closing) under applicable Laws (including the WARN Act USCC Entity, USCC Newco or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsAffiliate thereof.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Section 3.15 3.20(a)(i) of the Seller Disclosure Schedule contains Schedules sets forth a true table providing: (1) the name and complete listing job title; (2) employment type (full-time, part-time, temporary); (3) employment status (active or leave of absence), (4) the specific entity for whom they provide services; (5) hire date, (6) annual salary; (7) commission and bonus opportunity; (8) accrued but unused or unpaid vacation/paid time off balances; (9) the exempt and non-exempt status; and (10) location of each employee of (i) any Company and each Company Subsidiary or (ii) any Affiliate of the names of all Business EmployeesSellers, together with the following information Companies or any Company Subsidiary who provides services primarily to the Business, in each case as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;hereof.
(b) been delinquent Each Company and each Company Subsidiary is in payments to any Business Employee for any wages (including overtime compensation)compliance in all material respects with all Laws respecting employment, salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment, worker classification, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, occupational health and safety, wages (including overtime wages), compensation, hours of work, and hours labor relations and in connection each case, with the employment of any Business respect to their Employees: (i) has withheld and reported all amounts required by Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to such Employees, including (ii) is not liable for any such Laws relating to wages and hours, payment arrears of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion severance pay or other classification protected by law any Taxes or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, penalty for failure to comply with any employment Lawsof the foregoing, (iii) is 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 other benefits or obligations for such Employees (other than routine payments to be made in the normal course of business and consistent with past practice), and (iv) is not liable for special commitments or obligations over and above those given by Law regarding severance compensation, bonus, vacation, and any other employee benefit. There are no Proceedings pending or, to the Knowledge of the Sellers, threatened against any Company, Company Subsidiary or their respective Employees relating to any Employee, Employee Agreement or Employee Plan. There are no pending or, to the Knowledge of the Sellers, threatened Proceedings against any Company, any Company Subsidiary, any Company trustee or any trustee of any Company Subsidiary under any worker’s compensation policy or long-term disability policy.
(c) None of the Companies and Company Subsidiaries is party to any judgment, settlement a conciliation agreement, consent decree, or other agreement or order with any Governmental Entity requiring continuing compliance federal, state, provincial or reporting obligations entered into local agency or governmental authority with respect to resolve employment practices. The services provided by each Company’s, each Company Subsidiary’s and each Company ERISA Affiliate’s Employees in the U.S. are terminable at the will of the respective Company, Company Subsidiary, and Company ERISA Affiliate and any such termination would result in no liability to any Company, Company Subsidiary, or any Company ERISA Affiliate. None of the Companies and Company Subsidiaries has any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased or seconded from another employer, or (c) any employee currently or formerly classified as exempt from overtime wages. Nor does any Company or any Company Subsidiary have any joint-employer liability with respect to any service providers used or provided by any Company or Company Subsidiary.
(d) No strike, labor dispute, slowdown, concerted refusal to work overtime, or work stoppage against any Company or any Company Subsidiary is pending, or to the Knowledge of the Sellers, threatened, or reasonably anticipated. None of the Sellers has Knowledge of any activities or proceedings of any labor union or employment mattersimilar entity to organize any Employees. There are no formal or informal actions, proceedingssuits, controversiesclaims, grievanceslabor disputes or grievances pending or, chargesto the Knowledge of the Sellers, proceedings threatened or investigations against the Seller or any of its Affiliates pertaining reasonably anticipated relating to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with labor matters involving any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)Employee, including OSHA-300 injury logscharges of unfair labor practices. Further, Seller None of the Companies and its Affiliates maintain workers’ compensation coverage for all Business Employees Company Subsidiaries has engaged in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff unfair labor practices within the meaning of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN National Labor Relations Act or any similar state Laws);
(g) statute or Law, including any similar Law of a non-U.S. jurisdiction. Except as set forth in Section 3.20 of the Disclosure Schedules, none of the Companies and Company Subsidiaries is presently, nor has it been in the past, a party to, or bound by, any Collective Bargaining Agreement, effects collective bargaining agreement, neutrality union contract, labor-related agreement or cardarrangement with any union, works council or similar labor-check recognition agreementrelations body, or any similar Contract or agreement with respect to the Employees, (the “Labor Agreements”) and no Labor Agreements are being negotiated by any Company, any Company Subsidiary, or the Sellers. The consummation of the transactions contemplated by this Agreement will not entitle any third party (including any union, works council, or other labor-relations body) to any payments under any Labor Agreements or any similar arrangements or require any Company, Company Subsidiary, or Seller to consult with any union, works council or similar labor agreement relations body.
(e) None of the Companies and Company Subsidiaries has taken any action which would constitute a “plant closing” or “mass layoff” within the definition meaning of Section 301 WARN or any similar statute or Law, issued any notification of a plant closing or mass layoff required by WARN or any similar statute or Law, or incurred any liability or obligation under WARN or any similar statute or Law that remains unsatisfied. No terminations prior to the Labor Management Relations Act, 29 U.S.C. § 185, with Closing would trigger any labor organization representing notice or other obligations under WARN or any Business Employees;similar statute or Law.
(hf) except as set forth in 3.15(h) of There are no outstanding inspection orders made under U.S or Canadian occupational health and safety legislation relating to the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, Companies or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute Company Subsidiary. There are no pending or, to Seller’s Knowledgethe Knowledge of the Sellers, threatened charges against the Business;Companies or any Company Subsidiary under applicable U.S. or Canadian occupational health and safety laws and there have been no fatal or critical accidents that have occurred in the course of the operation of the Companies or any Subsidiary Company that would reasonably be expected to lead to charges under U.S. or Canadian occupational health and safety legislation.
(jg) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, All current assessments under U.S. or been party Canadian workers’ compensation legislation that relate to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 each of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller Companies or any of its Affiliates pertaining to the Business Company Subsidiary have been paid or any Business Employeesaccrued, and Seller each of the Companies and its Affiliates have Company Subsidiaries has not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsspecialty or penalty assessment under such legislation which has not been paid.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (YRC Worldwide Inc.)
Employment Matters. Section 3.15 of the Seller Disclosure (a) Schedule contains 4.28 (Part A) sets forth a true and complete listing of the names list of all Business Employees, together with their titles, service dates and material terms of employment, including current wages, salaries or hourly rates of pay, and bonus (whether monetary or otherwise) paid since the following information as beginning of the most recently completed fiscal year (including the date hereof with respect of payment if paid since March 30, 2001) or payable to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leaveEmployee, the type of leavedate upon which such wage, salary, rate or bonus became effective and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased date upon which each such Employee was first hired by the compensation payable Corporation or to become payable to or for the benefit of any of the Business EmployeesSubsidiaries. Except as disclosed in Schedule 4.28, no Employee is on disability leave, pregnancy or (ii) increasedparental leave, augmented extended leave of absence or improved receiving benefits granted pursuant to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;.
(b) been delinquent Except for those written employment contracts with salaried Employees identified in payments to any Business Employee for any wages Schedule 4.28 (including overtime compensationPart B), salaries, commissions, bonuses or other direct compensation for there are no written contracts of employment entered into with any services performed by them Employees or any amounts required to be reimbursed to such Business Employees;oral contracts of employment, which are not terminable on the giving of reasonable notice in accordance with applicable law.
(c) violated There are no written or oral change of control provisions or Contracts with any Laws in of the Employees which provide for any material respect with respect to employment and employment practices, terms and conditions rights of employment and wages and hours in connection with Employees contingent upon or affected by a change of control of the employment Corporation or any of the Subsidiaries or the sale of any Business Employees, including any such Laws relating to wages and hours, payment or all of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;their assets.
(d) been liable Schedule 4.28 (Part C) sets out a complete list of all independent contractors with whom the Corporation or any of the Subsidiaries has entered into any Contract, together with the material terms of all Contracts with them.
(e) Except for the payment Benefit Plans, there are no employment policies or plans which are binding upon the Corporation or any of the Subsidiaries.
(f) The Corporation and the Subsidiaries have been and are being operated in full compliance with all Laws relating to employees, including employment standards, occupational health and safety, human rights, labour relations and pay equity.
(g) There are no Claims or complaints nor, to the knowledge of the Vendors, the Corporation and the Subsidiaries, are there any claimsthreatened Claims or complaints, damages, fines, penalties, against the Corporation or other amounts any of the Subsidiaries pursuant to any current Laws relating to employees, including employment standards, human rights, labour relations, occupational health and safety, worker's compensation or former Business Employeespay equity. To the knowledge of the Vendors, however designatedthe Corporation and the Subsidiaries, for failure nothing has occurred which might lead to comply with a Claim or complaint against the Corporation or any employment of the Subsidiaries under any such Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal outstanding decisions or informal actions, proceedings, controversies, grievances, charges, proceedings settlements or investigations against pending settlements which place any obligation upon the Seller Corporation or any of its Affiliates pertaining the Subsidiaries to do or refrain from doing any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqact., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth All current assessments under workers' compensation legislation in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining relation to the Business Corporation and the Subsidiaries have been paid or any Business Employees, accrued and Seller the Corporation and its Affiliates the Subsidiaries have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsspecial or penalty assessment under such legislation which has not been paid.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Section 3.15 3.21(a) of the Seller Disclosure Schedule Schedules contains a true and complete listing of the names list of all persons who are Business Employees, together with independent contractors and consultants of the following information Business as of the date hereof with respect to hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full-time or part-time); (iii) date of hire or retention date; (and service start date if such date is different from date of hire), (div) current annual base compensation salary or hourly wage rate, as applicable, or contract fee; (ev) location (state); (vi) employing entity; (vii) hire date; (viii) classification as exempt or non-exempt from overtime pay requirements; (ix) commission, bonus or other additional incentive-based compensation (including equity or the terms thereof, if determined pursuant to a scale or formulaequity-based awards), if any, ; (fx) current employee status, including, if on leavea leave of absence, the type of leave, leave and expected return to work date; and (gxi) hours of accrued vacationvisa type, sick dayssponsoring entity and status (if applicable) (the “Business Employee List”). All compensation, personal daysincluding wages, float days salaries, wages, wage premiums, severance and any termination payments, commissions, bonuses, fees, expense reimbursements and other paid time offcompensation, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for all current and former employees (including the benefit of any Business Employees), independent contractors, consultants and other individual service providers of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws have been timely paid in any material respect with respect to employment full and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There there are no formal outstanding agreements, understandings or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the commitments of Seller or any of its Affiliates pertaining with respect to any such compensation. Seller and its Affiliates have properly classified and treated each person who has performed services for the Business as a consultant, leased employee, independent contractor, other non-employee service provider, or as an overtime exempt employee, for all applicable purposes.
(b) Except as set forth in Section 3.21(b) of the Disclosure Schedules, Seller and its Affiliates (with respect to the Business, Business Employees pending and other current and former employees, consultants and independent contractors of the Business) are not, and have not been for the past five years, a party to, bound by, or to Seller’s Knowledge threatened to be brought negotiating any Labor Agreement or filed by or bargaining relationship with any Governmental Entity Union, and there is not, and has not been for the past five years, any Union representing or arbitrator based onpurporting to represent any Business Employee or other current or former employee, arising out officer, director, consultant or independent contractor of the Business, and no Union or group of employees is seeking or has sought to organize any Business Employee or other current or former employee, officer, director, consultant or independent contractor of the Business for the purpose of collective bargaining. There has never been, nor has there been any threat of, in connection withany strike, or otherwise relating slowdown, work stoppage, lockout, concerted refusal to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health includingwork overtime, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations unfair labor practice charge or other proceedings under applicable occupational safety and health Laws similar labor disruption or regulations pending dispute against or affecting Seller or any of its Affiliates pertaining with respect to the Business, the Business Employees, and neither other current and former employees, officers, directors, consultants and independent contractors of the Business. Seller nor has no duty to bargain with any Union with respect to the Business, the Business Employees, and other current and former employees, officers, directors, consultants and independent contractors of the Business.
(c) Seller and its Affiliates has (with respect to the Business, the Business Employees, and other current and former employees, officers, directors, consultants and independent contractors of the Business) are and have been cited by any Governmental Entity in compliance in all material respects with all applicable Laws pertaining to labor, employment and employment practices, including all Laws relating to terms and conditions of employment, wages, hours, employee and independent contractor classifications (including OSHA classification as exempt or any comparable state agency) for violations of applicable occupational non-exempt employees), health and safety Laws in connection with safety, equal opportunity, harassment (including sexual harassment), retaliation, discrimination, restrictive covenants, pay transparency, disability rights or benefits, plant closures and layoffs, immigration (including the Business any completion of Forms I-9 for all U.S. employees and the proper confirmation of employee visas), layoffs and plant closures, workers’ compensation, labor relations, employee leave issues, paid time in the last five yearsoff, employee trainings and notices, COVID-19, affirmative action, unemployment insurance, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, and privacy. Seller and its Affiliates maintains (with respect to the Business, the Business Employees, and other current and former employees, officers, directors, consultants and independent contractors of the Business) are in compliance with and have complied in all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)material respects with all immigration laws, including OSHA-300 injury logsForm I-9 requirements and any applicable mandatory E-Verify obligations. Further, Seller and its Affiliates maintain workers’ compensation coverage for (with respect to the Business, the Business Employees, and other current and former employees, officers, directors, consultants and independent contractors of the Business) have complied in all Business Employees in accordance material respects with applicable Laws;the WARN Act, and have no plans to undertake any action prior to the Closing Date that would trigger the WARN Act.
(fd) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except Except as set forth in 3.15(hSection 3.21(c) of the Disclosure Schedules, there are, and in the past three years there have been, no Actions against Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeesor its Affiliates pending, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against to be brought or filed, by or with any Governmental Authority in connection with the employment of, termination of, employment of, engagement of, or application for employment of, any of the Business Employees or other current and former employees, officers, directors, consultants and independent contractors of the Business;, including, without limitation, any charge, investigation, litigation or claim relating to unfair labor practices, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, employee classification, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence, paid sick leave, unemployment insurance or any other employment or labor related matter arising under applicable Laws.
(je) recognized any labor organization as To the representative extent applicable to the Business, Seller and its Affiliates are and have for the past three years been in compliance in all material respects with Executive Order No. 11246 of any 1965 (“E.O. 11246”), Section 503 of the Rehabilitation Act of 1973 (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), including all their implementing regulations, and maintain and comply (and have for the past three years maintained and complied) with affirmative action plans and equal employment opportunity requirements in compliance with E.O. 11246, Section 503 and VEVRAA, including all their implementing regulations.
(f) Seller and its Affiliates (with respect to the Business, the Business Employees, received any demand for recognition from any labor organizationand other current and former employees, officers, directors, consultants and independent contractors of the Business) have promptly, thoroughly and impartially investigated all discrimination, sexual harassment, retaliation or been party to any petition for recognition or representation rights with any Governmental Entity with policy violation allegations of which they were made aware. With respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employedeach such allegation with potential merit, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining applicable Affiliate has taken prompt corrective action that is reasonably calculated to the Business or any Business Employeesprevent further improper conduct (including discrimination and harassment), and Seller and its Affiliates have do not been subject reasonably expect to incur any material Liability with respect to any remedial order issued by such allegation and are not aware of any Governmental Entity (including the National Labor Relations Board) for violations allegations relating to any Business Employee or other current or former employee, officer, director, consultant or independent contractor of applicable labor Laws in connection with the Business any time in that would indicate a breach of fiduciary duty or that, if known to the last three yearspublic, would bring Seller, its Affiliates or the Business into material disrepute.
(lg) Section 3.15(l) To Seller’s Knowledge, no Business Employee or other current or former employee, officer, director, consultant or independent contractor of the Business is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, noncompetition agreement, other restrictive covenant agreement, fiduciary duty, common law nondisclosure obligation or similar obligation or agreement: (i) owed to Seller Disclosure Schedule contains a complete and accurate description of or its Affiliates with respect to the substance of the oral notification provided Business; or (ii) owed to any third party with respect to such Person’s right to be employed or engaged by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)or its Affiliates.
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure (a) Schedule 2.12(a) contains a true complete and complete listing of the names of all Business Employeesaccurate list, together with the following information as of the date hereof hereof, of all
(i) Employees who perform services for the Insurer and all leased employees who perform services for the Insurer persons under a leasing, contract worker, or similar arrangement with respect to a third-party employer, or (ii) as an independent contractor (excluding accounting, tax, and legal service providers), along with, for each Person described in clauses (i) and (ii), such Person’s workplace location, his or her date(s) of hire, position and title, current rate of base salary and target annual bonus or incentive opportunity, whether such Person is classified as exempt or non-exempt, any accrued sick leave and accrued vacation of each such employee: (a) job titlePerson as of the Effective Date and whether such Person is absent from active employment and, if so, the date such Person became inactive, the reason for inactive status and, if applicable, the anticipated date of return to active employment. Except as disclosed on Schedule 2.12(a), the Insurer does not have any unsatisfied liability to any previously terminated employee or independent contractor of the Insurer.
(b) locationSince January 1, 2020 to the date hereof, the Insurer has complied in all material respects with all applicable Laws concerning labor and employment and the terms of each applicable employment or services agreement in respect of all of their respective current and former Employees and independent contractors of the Insurer, including without limitation such Laws relating to wages, hours, discrimination in employment, retaliation, worker classification, immigration, tax withholding and reporting, workers’ compensation, unemployment insurance and employment termination. Since January 1, 2020 to the date hereof, to the Knowledge of Seller, the Insurer (i) has not received notice of any actual or alleged violation of any such Law or breach of any such agreement, and there are no grounds therefor, and (ii) has not been subject to or received notice of an audit or investigation by any Governmental Authority relating to any employment- related matter.
(c) date of hire (and service start date if such date is different from date of hireExcept as set forth on Schedule 2.12(c), all employees who work for, or on behalf of, the Insurer, and who will be offered employment by the Purchaser are employees at-will or otherwise employed such that the Insurer may lawfully terminate their employment at any time, with or without cause, without creating any material cause of action against the Insurer or otherwise giving rise to any material liability of the Insurer for wrongful discharge, breach of contract or tort or any other similar cause at Law or in equity.
(d) base compensation rateNo Transferred Employee is subject to or otherwise bound by any Contract, (e) commissionincluding any confidentiality, bonus non-competition, non-solicitation, or other additional compensation (or the terms thereofproprietary rights agreement between such Employee, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time offPerson that would prohibit the performance of his or her duties as an employee, if any. Since June 30director, 2012consultant or independent contractor of the Insurer’s business as currently conducted, except or restrict materially the ability of the Insurer to conduct such business in the ordinary course of business.
(e) As of the date hereof, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable Insurer is not a party to, otherwise bound by, subject to or for has any liability with respect to, any collective bargaining agreement, labor union contract or other arrangement or understanding with a labor union or labor organization, and there are no unions or other organizations representing, purporting to represent or attempting to represent any Employees. To the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Lawsas of the date hereof, violated any applicable Laws pertaining to immigration and work authorization, there are no activities or received notice from any Governmental Entity proceedings of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses labor union or other direct compensation for any services performed by them or any amounts required Person to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or organize any of its Affiliates pertaining to any Business Employees pending or to the Seller’s Knowledge threatened to be brought Employees. As of the date hereof, there is no labor strike, labor dispute, slowdown, work stoppage or filed by or with any Governmental Entity or arbitrator based onlockout pending or, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the BusinessKnowledge of Seller, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA threatened against or any comparable state agency) for violations of applicable occupational health and safety Laws affecting the Insurer that would reasonably be expected to result in connection with a material liability to the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;Insurer.
(f) The Insurer has not effectuated a “plant closing” or “mass layoff” as those terms are defined in the WARN Act, affecting in whole or in part any site of employment, facility, operating unit or Employee, without complying with all provisions of the WARN Act, or implemented any plant closingearly retirement, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act separation or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement window program within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
twelve (h12) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining months prior to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations date of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including nor has the description of Insurer announced any such action or program for the treatment of the pension plan included in Section 5.5(b)(iii)future.
Appears in 1 contract
Samples: Stock Purchase Agreement (AMERICAN COASTAL INSURANCE Corp)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleThe Company is in compliance in all material respects with all Applicable Laws, (b) locationapplicable recognition or collective bargaining agreements and other agreements with any works councils, (c) date of hire (and service start date if such date is different from date of hire)labor unions, (d) base compensation rate, (e) commission, bonus employee representatives or other additional compensation (labor organizations or the terms thereofgroup of employees, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, extension orders and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Lawsbinding customs, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent their own policies, practices, handbooks, work rules and internal regulations, respecting labor and employment, discrimination, harassment and retaliation in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practicesemployment, terms and conditions of employment, employee benefits, worker classification (including the proper classification of workers as independent contractors and consultants), wages (including proper classification of employees for purposes of overtime payments under Applicable Law), disability, paid sick leave, background checks, drug testing, salary history, inquiries, workers’ compensation, immigration, meal and rest breaks, hours and occupational safety and health and employment and wages and hours in connection with the employment of any Business Employeespractices, including the Immigration Reform and Control Act and, with respect to each Company Employee Plan, (i) the applicable health care continuation and notice provisions of COBRA and the regulations (including proposed regulations) thereunder, (ii) the applicable requirements of the Family Medical and Leave Act of 1993 and the regulations (including proposed regulations) thereunder, (iii) the applicable requirements of the federal Affordable Care Act and the Health Insurance Portability and Accountability Act of 1996 and the regulations (including proposed regulations) thereunder, (iv) the applicable requirements of the Americans with Disabilities Act of 1990, as amended and the regulations (including proposed regulations) thereunder, (v) the Age Discrimination in Employment Act of 1967, as amended, and (vi) the applicable requirements of the Women’s Health and Cancer Rights Act of 1998 and the regulations (including proposed regulations) thereunder. Neither the Company nor any such Laws relating to wages and hours, payment Subsidiary has or is engaged in any unfair labor practice. Neither the Company nor any Subsidiary is liable for any arrears of wages, child laboraccrued but untaken vacation or holiday pay, family and medical leavecompensation, access to facilities and employment opportunities for disabled personsTaxes, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion penalties or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, sums for failure to comply with any employment Lawsof the foregoing. The Company and each Subsidiary has paid in full to all current or former employees, non-employee directors, consultants and other service providers all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, non-employee directors, consultants and other service provider. Neither the Company nor any Subsidiary is party liable for any payment to any judgment, settlement agreement, consent decree, trust or other agreement with fund or to any Governmental Entity requiring continuing Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). As of the Agreement Date, there are no pending claims against the Company or any Subsidiary under any workers compensation plan or policy or for long term disability. As of the Agreement Date, there are no controversies pending or, to the knowledge of the Company, threatened in writing, between the Company or any of the Subsidiaries and any of their current or former job applicants, employees, paid or unpaid interns, non-employee directors, consultants or other service providers, which controversies have resulted or would reasonably be expected to result in a Legal Proceeding before any Governmental Entity. Each nonqualified deferred compensation plan established by the Company or any Subsidiary or ERISA Affiliate has been operated and maintained in operational and documentary compliance with Sections 409A and 457A of the Code and applicable guidance thereunder.
(b) The Company has required that all current and former employees working in the United States complete a Form I-9 in connection with the commencement of their employment and has made available to Acquirer all Forms I-9 with respect to all of its current and former employees for whom such a form is required by Applicable Law. To the knowledge of the Company, every employee of the Company or reporting obligations entered into any Subsidiary who requires a visa, employment pass or other required permit to resolve any labor work in the country in which he or she is employed has produced a current employment matter. pass or such other required permit to the Company.
(c) There are no formal works councils, unions, labor organizations, employee delegates or informal actionsother employee representative bodies at the Company. Neither the Company nor any Subsidiary is a party to or bound by any collective bargaining agreement, proceedingsrecognition agreement, controversiesworks council arrangement or other labor union Contract, grievancesno collective bargaining agreement or recognition agreement is being negotiated by the Company or any Subsidiary and neither the Company nor any Subsidiary has any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company or any Subsidiary. To the knowledge of the Company, chargesthere are no activities or proceedings of any labor union, proceedings works council, employee representative body or investigations other labor organization or group of employees to organize the employees of the Company. There is no labor dispute, strike or work stoppage against the Seller Company or any Subsidiary pending or, to the knowledge of its Affiliates pertaining the Company, threatened in writing that would reasonably be expected to materially interfere with the conduct of the Business, nor have there been any Business Employees pending such labor disputes, strikes or work stoppages in the past three years. Neither the Company nor any Subsidiary, to Seller’s Knowledge threatened to be brought or filed by or with the knowledge of the Company, any Governmental Entity or arbitrator based on, arising out of, of their respective Representatives has committed any unfair labor practice in connection with, or otherwise relating to alleged violation with the conduct of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor there is no charge or complaint against the Company or any of its Affiliates has been cited Subsidiary by any Governmental Entity (including OSHA the National Labor Relations Board or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledgethe knowledge of the Company, threatened against the Business;in writing.
(jd) recognized To the knowledge of the Company, no employee of the Company or any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any Subsidiary is in violation in any material respect of any labor Laws term of any jurisdiction where employment agreement, non-competition agreement or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company or any Subsidiary because of the nature of the Business Employees are employed, including any violations or to the use of Section 8 trade secrets or proprietary information of others. To the knowledge of the National Labor Relations Act Company, no contractor of the Company or any Subsidiary is in violation in any material respect of any term of any non-competition agreement or any restrictive covenant to a former employer relating to the right of any such contractor to be providing services to the Company or any Subsidiary because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as amendedset forth on Schedule 2.14(d) of the Company Disclosure Letter, 29 U.S.C. § 158as of the Agreement Date, no employee of the Company or any Subsidiary has given written notice to the Company that he or she intends to terminate his or her employment with the Company or any Subsidiary and, to the knowledge of the Company, no Key Employee has a present intent to terminate his or her employment with the Company or any Subsidiary. There are currently no unfair labor practice charges Except as set forth on Schedule 2.14(d) of the Company Disclosure Letter, the employment of each of the employees of the Company and the Subsidiaries is “at will” and neither the Company nor any Subsidiary has any obligation to provide any particular form or complaints pending with period of notice, severance or termination payments prior to terminating the employment of any Governmental Entity alleging of their respective employees. Neither the Company nor any violations Subsidiary has, and to the knowledge of applicable labor Laws pending against Company, any other Person (other than, for the Seller avoidance of doubt, Acquirer or any of its Affiliates pertaining subsidiaries) has, (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or former employee, non-employee director, consultant or other service provider of the Business Company or any Business Employees, and Seller and its Affiliates have not been subject Subsidiary or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any remedial order issued by present or former employee, non-employee director, consultant or other service provider of the Company or any Governmental Entity (including Subsidiary of any terms or conditions of employment with Acquirer following the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsEffective Time.
(le) Section 3.15(lSchedule 2.14(e)(i) of the Seller Company Disclosure Schedule contains a complete and accurate description Letter sets forth, as of the substance Agreement Date and to the extent permitted to be disclosed pursuant to Applicable Law, a true, correct and complete list of all officers, directors and other employees of the oral notification Company and the Subsidiaries, showing each such individual’s name, position, location (including city, state and country), date of hire, annual remuneration (including allowances, bonuses and commissions, as applicable), full-time or part-time status, health and retirement benefits participation, current employment status (active or on leave but without disclosing private information), name of legal employer, status as exempt/non-exempt, and bonuses for the current fiscal year and the most recently completed fiscal year. Schedule 2.14(e)(ii) of the Company Disclosure Letter sets forth, as of the Agreement Date and to the extent permitted to be disclosed pursuant to Applicable Law, the additional following information for each of the Company’s and the Subsidiaries’ international employees: city/country of employment, citizenship, manager’s name, and date of birth. For purposes of the lists on Schedules 2.14(e)(i) and 2.14(e)(ii) of the Company Disclosure Letter, employees who are engaged through a professional employer organization are included in “employees of the Company”, and such list indicates which employees are so engaged and the applicable professional employer organization. Except as set forth on Schedule 2.14(e)(ii), no employee of the Company resides or primarily performs work for or on behalf of the Company of any Subsidiary outside of the United States. Schedule 2.14(e)(iii) of the Company Disclosure Letter sets forth, as of the Agreement Date and to the extent permitted to be disclosed pursuant to Applicable Law, a true, correct and complete list of all of the Company’s and the Subsidiaries’ consultants, advisory board members and independent contractors and, for each, (i) such individual’s compensation, (ii) such individual’s initial date of engagement, (iii) whether such engagement has been terminated by notice provided or other action or omission on or before the Agreement Date by either party thereto and (iv) the notice or termination provisions applicable to the services provided by Seller such individual. The Company shall update Schedules 2.14(e)(i), 2.14(e)(ii) and 2.14(e)(iii) from time to represented Business Employees on the transactions contemplated by this Agreement, including the description time and as of the treatment Closing Date.
(f) As of the pension plan included Agreement Date, there are no material performance improvements or disciplinary actions pending against any of the Company’s or any Subsidiary’s employees. To the Company’s knowledge, since January 1, 2015, (i) no allegations of sexual harassment or discrimination have been made against any current or former officer, Key Employee or employee at a level of Senior Vice President or above of the Company or any of its Subsidiaries and (ii) neither the Company nor any of the Subsidiaries have entered into any settlement agreements related to allegations of sexual harassment or discrimination or misconduct by any current or former officer, Key Employee or employee at a level of Senior Vice President or above of the Company or any of its Subsidiaries.
(g) The Company and each Subsidiary is in Section 5.5(b)(iiicompliance in all material respects with the Worker Adjustment Retraining Notification Act of 1988, as amended (the “WARN Act”), or any similar Applicable Law. In the past two years, (i) neither the Company nor any Subsidiary has effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business, (ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of the Company or any Subsidiary and (iii) neither the Company nor any Subsidiary has been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar Applicable Law. Neither the Company nor any Subsidiary has caused any of its employees to suffer an “employment loss” (as defined in the WARN Act) during the 90-day period immediately preceding the Agreement Date.
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleNeither the Company nor GRA is a party to, (b) locationor bound by, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus any collective bargaining or other additional compensation (or the terms thereof, if determined pursuant to agreement with a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor labor organization representing any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees. Since January 1, or (ii) increased2017, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three yearsthere has not been, neither the Seller nor any of its Affiliates has:
(a) nor, to Seller’s Knowledge, employed has there been any Business Employee who threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting the Company or GRA.
(b) Each of the Company and GRA is not legally eligible for employment under applicable immigration Laws, violated any in material compliance with all applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, practices (including terms and conditions of employment employment, employee benefits, worker classification (including the proper classification of workers as independent contractors and wages consultants, and hours in connection with the employment proper classification of any Business Employeesemployees as exempt or non-exempt), including any such Laws relating to wages and hours, payment of wages, child laborhours and occupational safety and health practices) to the extent they relate to employees of the Company or GRA. Except as set forth in Section 3.17(b) of the Disclosure Schedules, family and medical leavethere are no actions, access to facilities and employment opportunities for disabled personssuits, employment discrimination (including discrimination based upon sexclaims, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion investigations or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, legal proceedings or investigations against the Seller Company or any of its Affiliates pertaining to any Business Employees GRA pending or or, to Seller’s Knowledge threatened to be brought or filed filed, by or with any Governmental Entity Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business employment of any time in current or former employee of the last five years. Seller and its Affiliates maintains all records and reports pertaining Company or GRA, including, without limitation, any claim relating to occupational health and safety required by any occupational safety and health Laws unfair labor practices, employment discrimination, harassment, retaliation, equal pay or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with other employment related matter arising under applicable Laws;.
(fc) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except Except as set forth in 3.15(hSection 3.17(c) of the Seller Disclosure ScheduleSchedules, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeessince January 1, or any effects bargaining agreement2017, neutrality or card-check recognition agreementthere has not been, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending ornor, to Seller’s Knowledge, threatened has there been any, action, suit, legal proceeding, audit or investigation against any employee of the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, Company or been party to any petition for recognition or representation rights with any Governmental Entity GRA with respect to allegations of sexual harassment or sexual misconduct, and to Seller’s Knowledge, since January 1, 2017, there have been no reported internal or external complaints accusing any Business Employees; or
(k) committed any violation in any material respect supervisory or managerial employee of the Company or GRA of sexual harassment or sexual misconduct and no employee of the Company or GRA has entered into a contract for the settlement of any labor Laws of any jurisdiction where the Business Employees are employedaction, including any violations of Section 8 of the National Labor Relations Act as amendedsuit, 29 U.S.C. § 158. There are currently no unfair labor practice charges legal proceeding, audit or complaints pending investigation with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller respect to sexual harassment or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearssexual misconduct.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Accel Entertainment, Inc.)
Employment Matters. (a) Section 3.15 3.25(a) of the Seller Disclosure Schedule contains a true and complete listing list of all persons who are employees, independent contractors or consultants of the names of all Business Employees, together with the following information Company as of the date hereof with respect to hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full or part time); (iii) date of hire (and service start date if such date is different from date of hire), (d) current annual base compensation rate, ; (eiv) commission, bonus or other additional compensation incentive-based compensation; (v) location; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. Except as set forth in Section 3.25(a) of the Disclosure Schedule, as of the date hereof, all compensation, including wages, commissions and bonuses, payable to all employees, independent contractors or consultants of the Company for services performed on or prior to the date hereof have been paid in full (or accrued in full on the terms thereofCompany’s books and records) and there are no outstanding agreements, if determined pursuant to a scale understandings or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any commitments of the Business EmployeesCompany with respect to any compensation, commissions or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;bonuses.
(b) been delinquent The Company is in compliance with all Laws respecting employment, including wages and hours of work, meal and rest break laws, expense reimbursement laws, discrimination, harassment, retaliation, disability, civil rights, immigration, pay equity, terms and conditions of employment, worker classification (including the proper classification of workers as exempt vs. nonexempt and workers as independent contractors or consultants), the Fair Labor Standards Act and its state law equivalents, Title VII and its state law equivalents, all laws governing leaves of absence including the Family Medical Rights Acts and its state law equivalents, and occupational health and safety, except for such violations which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has materially complied with all recordkeeping laws including but not limited to all accountings related to wages, sick pay, vacation accrual, and time records.
(c) The Company has withheld all amounts required by Law or by agreement to be withheld from the wages, salaries, and other payments to any Business Employee employees; and is not liable for any wages arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing (including overtime commissions, bonuses, overtime, vacation pay, paid time off or other compensation). The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other direct compensation for fund or to any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect Governmental Authority, with respect to employment unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and employment practicesconsistently with past practice). There are no Actions pending or, terms to the Company’s Knowledge, threatened, nor to the Company’s Knowledge are there any pending or threatened (in writing) investigations or audits against Company by any of its employees, former employees or contractors, or any Governmental Authority.
(d) Except as set forth in Section 3.25(b) of the Disclosure Schedule, the Company is not, and conditions has not been for the past five (5) years, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, “Union”), and there is not, and has not been for the past five (5) years, any Union representing or purporting to represent any employee of employment the Company, and, to the Company’s Knowledge, no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. Except as set forth in Section 3.25(b) of the Disclosure Schedule, there has never been, nor, to the Company’s Knowledge, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting the Company or any of its employees. To the Company’s Knowledge, the Company is not engaged in any unfair labor practice and wages no unfair labor practice complaint, grievance or arbitration proceeding is pending or threatened against the Company. The Company has no duty to bargain with any Union.
(e) All employees of the Company classified as exempt under the Fair Labor Standards Act and hours state and local wage and hour laws are properly classified in all material respects. Except as set forth in Section 3.25(e) of the Disclosure Schedule, there are no Actions against the Company pending, or to the Company’s Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employeesapplicant, however designatedemployee, for failure to comply with any employment Lawsconsultant, or is party independent contractor of the Company, including, without limitation, any claim relating to any judgmentunfair labor practices, settlement agreementemployment discrimination, consent decreeharassment, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actionsretaliation, proceedingsequal pay, controversies, grievances, charges, proceedings or investigations against the Seller wage and hours or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, other employment related matter arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;.
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including The Company is in compliance in all material respects with the WARN Act ACT, or any similar state Laws);or local law. Since January 1, 2015, (i) the Company has not effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business; (ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of the Company; and (iii) the Company has not been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, local or foreign law or regulation. The Company has not caused any of its employees to suffer an “employment loss” (as defined in the WARN Act) during the 90 day period prior to the date hereof.
(g) been a party toTo the Company’s Knowledge, no employee or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 consultant of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth Company is in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
material violation of: (i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative term of any Business Employees, received any demand for recognition from any labor organization, employment or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 consulting Contract of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).Company or
Appears in 1 contract
Employment Matters. Section 3.15 (a) Schedule 4.20(A) sets forth a complete list of, Non-Union Employees to whom the Purchaser shall make an offer of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employeesemployment, together with the following information as their titles, seniority, salaries or hourly rate of pay, date of hiring, last raise date, benefits, vacation entitlement and commission entitlements and bonus entitlements, and all Union Employees together with their titles, seniority, salaries or hourly rate of pay, date of hiring, last raise date, benefits, vacation entitlement and commission entitlements and bonus entitlements. As of the date hereof with respect to each of this Agreement, none of such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if Non-Union Employees are on long term disability leave, the type of parental leave or sabbatical leave, and except as set forth on Schedule 4.20(B) (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business “Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letterson Leave”;).
(b) been delinquent Except for those Employment Contracts listed in payments to Schedule 4.20(C), there are no written Employment Contracts with any Business Employee for Non-Union Employees or Partnership Employees which are not terminable on the giving of reasonable notice in accordance with Laws. Current and complete copies of all Employment Contracts with any wages Non-Union Employees and Partnership Employees, (including overtime compensation), salaries, commissions, bonuses a summary of any unwritten terms or other direct compensation for any services performed by them or any amounts required amendments) have been made available to be reimbursed to such Business Employees;the Purchaser.
(c) violated Except as disclosed in Schedule 4.20(D), there are no grievances, claims, work orders, investigations or charges outstanding, or to the knowledge of the Vendor, anticipated, nor are there any Laws orders, decisions, directions or convictions currently registered or outstanding by any tribunal agency against or in respect of the Vendor relating to the Employees or Partnership Employees under or in respect of any material respect Employment Legislation. The Vendor and the Partnership is, with respect to the Employees and Partnership Employees, as the case may be, in compliance in all material respects with all Laws respecting employment, employment practices and employment practicesstandards, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law)employment, equal employment opportunities opportunity, non-discrimination, wages, hours benefits, workers compensation, occupational safety and affirmative action, employee privacy, health and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;plant closing.
(d) been liable All accruals for unpaid vacation pay, premiums for unemployment insurance, health premiums, Canada Pension Plan premiums, wages, salaries, bonuses and commissions and employee benefit plan payments for the payment Non-Union Employees have been reflected in the books and records of any claimsthe Vendor and in the Financial Information and for the Partnership Employees have been reflected in the books and records of the Partnership. At the Effective Time, damages, fines, penalties, all bonuses in respect of the 2011 fiscal year shall have been paid to the Employees or other amounts to any current or former Business Employees, however designated, will be included in Current Liabilities for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against purposes of the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;Working Capital calculation.
(e) materially violated any Laws regulating occupational safety The Vendor has furnished to the Purchaser true, correct, up-to-date, and health includingcomplete copies of all Benefit Plans (or, but not limited where oral, written summaries of the material terms thereof) as amended as of the date hereof, including the most recent personnel manuals, booklets, brochures, summaries, descriptions and manuals prepared for, and circulated to, the U.S. Occupational Safety Employees, the Partnership Employees and Health Act, 29 U.S.C. §§ 651, et seqeach of their dependants and beneficiaries concerning the Benefit Plan., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business The only Benefit Plans applicable to the Businesses and the Employees that could require notice (without regard to any actions that could be taken by are the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state LawsBenefit Plans as set forth on Schedule 4.20(E);.
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or cardThe only multi-check recognition agreement, or other labor agreement within employer pension and benefit plans for the definition of Section 301 of Union Employees are the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;multi-employer pension and benefit plans as set forth on Schedule 4.20(F) (the “Multi-Employer Plans”).
(h) except The only pension plans other than Multi-Employer Plans applicable to the Businesses, the Employees and the Partnership Employees are the pension plans as set forth in 3.15(hon Schedule 4.20(G) of (the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other “Pension Plans”). The Vendor has made all payments and material work stoppage, picketing, handbilling, or bannering due filings required to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor be made by it under Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining pursuant to the Business or any Business Employees, Pension Plans and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsMulti-Employer Plans.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Asset Purchase Agreement (Postmedia Network Canada Corp.)
Employment Matters. (a) Section 3.15 3.24(a) of the Seller Company Disclosure Schedule contains a true and complete listing Schedules sets forth the list of Employees, which indicates: (i) the names titles of all Business Employees, Employees together with the following information location of their employment; (ii) the date each Employee was hired; (iii) the age of each Employee; (iv) which Employees are subject to a written employment agreement with the Company; (v) each Employee’s termination entitlement upon a termination without cause (i.e., common law notice, employment standards statutory entitlements only, or otherwise by contract); (vi) the annual wage of each Employee at the date of such list, any bonuses paid to each Employee since the end of the Company’s last completed financial year and before the date of such list and all other bonuses, incentive schemes, benefits, commissions and other compensation to which each Employee is entitled including structure, targets and entitlements; (vii) the vacation days to which each Employee is entitled on the date of such list; (viii) the amount of vacation days accrued as of the date hereof with respect to each such employee: of this Agreement; (aix) job title, eligibility in and participation in the Equity Compensation Plan (bx) location, (c) the Employees that are not actively working on the date of hire (and service start date if such date is different from date this Agreement due to leave of hire)absence, (d) base compensation rateillness, (e) commissioninjury, bonus accident or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leavedisabling condition, the type of reason for such leave, and the expected return to work date (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any); and (xi) the Company employing such Employee. Since June 30Other than Xxxxx Xxxxx, 2012, except all Employees are employed only in the ordinary course Province of business, neither Seller nor British Columbia. The Company does not have any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;dependent contractors.
(b) been delinquent Except as set forth in payments Section 3.24(b) of the Company Disclosure Schedules, the Company is in compliance with its duties and obligations under all applicable labor and employment-related laws, including employment standards, workers’ compensation, occupational health and safety, classification, accessibility, immigration, pay equity, and human rights, and the Company is not subject to any Business Employee or liable for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment arrears of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damagespenalties, fines, penaltiesorders to pay, assessments, charges, damages or other amounts to any current or former Business Employees, however designated, taxes for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matterof the foregoing. There are no formal or informal actionsoutstanding decisions, proceedings, controversies, grievancesorders, charges, proceedings tickets, notices or investigations settlements or to the Company’s Knowledge pending settlements under applicable labor and employment-related laws that place any obligation on the Company to do or refrain from doing any act. All costs, charges, experience rating assessments or other assessments or other liabilities, contingent or otherwise, under workers’ compensation legislation or other legislation relating to industrial accidents and/or occupational diseases claims applicable to the Company have been paid or accrued and there has not been any special or penalty charge or assessment under those legislation against the Seller or any of its Affiliates pertaining Company that has not been paid. To the Company’s Knowledge, no facts exist which could reasonably be expected to give rise to any Business Employees pending or claims with respect to Sellerapplicable labor and employment-related laws. Section 3.24(b) of the Company Disclosure Schedules lists all persons who have had their employment end with the Company in the past 3 years, however it may have ended (including resignation), all releases and resignation letters and acceptances have been provided to the Purchaser with respect to such persons, and without limiting the generality of the foregoing paragraph, to the Company’s Knowledge threatened no facts exist which could reasonably be expected to be brought or filed by or give rise to any claims with respect to such persons.
(c) Section 3.24(c) of the Company Disclosure Schedules lists: (i) all Contracts with any Governmental Entity Employee; and (ii) all Contracts that provide for severance, termination or arbitrator based onsimilar payments or entitlements, arising including on a change of control of the Company.
(d) Correct and complete copies of all the Contracts set out of, in connection with, or otherwise Section 3.24(b) of the Company Disclosure Schedules have been made available to Purchaser and templates of the Contracts that describe all of the terms of the Contracts relating to alleged violation the list of any employment Laws;Employees set out in Section 3.24(a) of the Company Disclosure Schedules have been made available to Purchaser.
(e) materially violated any Laws regulating occupational safety and health includingExcept as set forth on Section 3.24(a) of the Company Disclosure Schedules, but not limited to, all Employees are subject to a written employment contract with the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the BusinessCompany, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection no Employees are subject to an oral employment contract with the Business Company, and no Employees have any time oral entitlements in addition to their entitlements under their written employment contracts with the last five yearsCompany by which such Employee is employed. Seller All Employees are entitled to only the severance entitlements set out in their written employment contracts with the Company upon termination of employment and its Affiliates maintains all records and reports pertaining are not entitled to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;common law notice.
(f) implemented any plant closingThe Company is not currently, mass layoff of Business Employees that could require notice (without regard nor has been, a party to any actions Collective Agreement. No trade union, association or organization that could may qualify as a trade union, contingent or otherwise, council of trade unions, employee bargaining agency or affiliated bargaining agent holds bargaining rights with respect to any of the Employees or dependent contractors including by way of certification, interim certification, voluntary recognition, related employer or successor employer rights, or has applied or threatened to apply to be taken certified as the bargaining agent of any of the Employees or dependent contractor of the Company. There have never been any, and to the Company’s Knowledge there are no currently being made, organizational efforts, threatened by or on behalf of, any trade union, association or organization that may qualify as a trade union, contingent or otherwise, council of trade unions, employee bargaining agency or affiliated bargaining agent with respect to the Buyer following Employees or dependent contractors of the Closing) under applicable Laws (including the WARN Act or any similar state Laws);Company.
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 3.24(g) of the Labor Management Relations ActCompany Disclosure Schedules lists: (i) all Persons who are currently performing services for the Company as Independent Contractors under a Contract; (ii) the current rate of compensation and total fees paid during the 12-month period ending on Interim Balance Sheet Date of each such Person; and (iii) their termination entitlements including for material breach or for convenience. All of the Independent Contractors provide services to the Company under standard form agreements, 29 U.S.C. § 185a copy of each standard form agreement has been made available to Purchaser in addition to copies of all non-standard agreements, with any labor organization representing any Business Employees;the Independent Contractors have executed such standard form in an enforceable manner and all terms of such standard form are enforceable. All Independent Contractors are located in and provide services only in the Province of British Columbia.
(h) except as set forth No notice in 3.15(h) writing has been received by the Company of any complaint filed by any of its Employees, former Employees or applicants against the Company or any current or former director or officer thereof or to the Company’s Knowledge is threatened or pending, claiming or alleging that the Company has violated any Laws applicable to the employee or applicant or human rights or of any complaints or Actions of any kind involving the Company or any of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, former Employees or applicants before any effects bargaining agreementGovernmental Authority, neutrality including a labor relations board, tribunal or card-check recognition agreement, or other labor agreement;commission.
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due There has been no increase in compensation from the base salary payable to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;Employees between the Interim Balance Sheet Date and the date of this Agreement.
(j) recognized any labor organization Except as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation set out in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l3.25(j) of the Seller Company Disclosure Schedule contains Schedules, no Employee has stated to the Company in writing that he or she shall resign or retire or cease to provide work or services as a complete and accurate description result of the substance Closing of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement.
(k) There is no notice of assessment, provisional assessment, reassessment, supplementary assessment, penalty assessment or increased assessment which the Company has received before the date of this Agreement during the past three (3) years from any workplace safety and insurance or workers compensation board or similar Governmental Authority in any jurisdiction where the Business is carried on that remain unpaid.
(l) All inspection reports received by the Company in the past three (3) years under applicable employment standards legislation, human rights legislation, workers’ compensation legislation, and occupational health and safety legislation have been made available to Purchaser. There are no outstanding Governmental Orders nor to the Company’s Knowledge any pending charges made under any applicable employment standards legislation, human rights legislation, workers’ compensation legislation, or occupational health and safety legislation relating to the Company or the Business and there have been no fatal or critical accidents within the last three (3) years that might reasonably be expected to lead to charges involving the Company. The Company has complied with all Governmental Orders issued under applicable employment standards legislation, human rights legislation, workers’ compensation legislation and occupational health and safety legislation in all respects.
(m) Except as set forth in Section 3.24(m) of the Company Disclosure Schedules, no Independent Contractor was paid more than $75,000 in any of the past three (3) financial years of the Company. Each Independent Contractor, including the description Independent Contractors who are listed in Section 3.24(m) of the treatment of Company Disclosure Schedules, has been properly classified as an Independent Contractor and the pension plan included Company has not received any notice from any Governmental Authority disputing such classification.
(n) All accruals for unpaid vacation pay, premiums for employment insurance, health premiums, Canada Pension Plan premiums, accrued wages, salaries and commissions and Benefit Plan payments have been reflected in Section 5.5(b)(iii)the Books and Records.
Appears in 1 contract
Samples: Share Purchase Agreement (Inpixon)
Employment Matters. (a) Section 3.15 3.8 of the Seller Sellers’ Disclosure Schedule contains a true and complete listing of the names list of all Business Employees, together with the following information contractors, and other service providers as of the date hereof with respect to and sets forth for each such employeeindividual the following as of the date hereof: (ai) job title, title or position (b) location, (c) date of hire (and service start date if such date is different from date of hireincluding whether full or part time), (dii) hire date, (iii) age (for employees working in Canada only), (iv) annual base compensation or hourly rate, (ev) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if anyincentive-based compensation, (fvi) current employee work location, (vii) leave status, including(viii) exempt/non-exempt classification, if on leave, the type of leave(ix) accrued vacation, and (gx) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit a description of any of material fringe benefits provided to each such individual. Such information shall be updated upon reasonable request by Buyer and five days prior to the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;Closing Date.
(b) been delinquent in payments No Company is a party to or bound by any Business Employee for any wages (including overtime compensation)collective bargaining, salaries, commissions, bonuses works council or other direct compensation for agreement with a labor organization or representative covering the Employees, and there are no ongoing or threatened, and have not been in the past three years, any services performed by them union organizing activities, strikes, lockouts, slowdowns or any amounts required to be reimbursed to such Business work stoppages involving the Employees;.
(c) violated any Laws Except as set forth in any Section 3.8(c) of Sellers’ Disclosure Schedule, (i) each Company is, and has been for the past three years, in compliance in all material respect respects with respect all applicable Laws, Contracts, agreements, and policies relating to employment and employment practices, terms and conditions of employment and employment, including Laws regarding wages and hours in connection with (including those regulating the employment timing of any Business Employeespayments, including any such Laws relating to wages and hourswage notices, classification of employees as exempt or non-exempt, payment of overtime and minimum wages, child laborhours of work, family and medical leaveprovision of mandated meal and rest breaks), access to facilities and termination of employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion any obligations pursuant to the Worker Adjustment and Retraining Notification Act of 1988 (or other classification protected by law or retaliation for exercise of rights under applicable Lawsimilar laws) (the “WARN Act”), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health includinghealth, but not limited tohuman rights, the U.S. Occupational Safety and Health Actpay equity, 29 U.S.C. §§ 651classification of service providers as independent contractors, et seq.consultants or employees, or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Businessimmigration, background checks, employment record retention, and neither Seller nor any of its Affiliates has paid and unpaid leave, (ii) there are no, and for the past three years have not been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)any, including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with against any Governmental Entity Company and to Sellers’ Knowledge, no such charges or complaints are threatened, and (iii) there is no Action pending, and have been no Actions in the past three years, against any Company alleging any violations of applicable labor Laws pending against the Seller any employment Laws, or brought by or on behalf of any of its Affiliates pertaining to the Business current or any Business Employeesformer Employee or other service provider, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsor applicant.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleExcept as set forth on Part 2.18(a) of the Disclosure Schedule, the Seller is not a party to any labor or collective bargaining agreement and there are no labor or collective bargaining agreements which pertain to the Transferred Employees. There has been no organizing activity involving the Seller pending since January 1, 2020 to the date of this Agreement, or, to the Seller’s Knowledge, threatened by any labor organization or group of Transferred Employees.
(b) locationExcept as set forth on Part 2.18(b) of the Disclosure Schedule, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: there has been no (i) increased strikes, work stoppages, slowdowns, lockouts or arbitrations since January 1, 2020 to the compensation payable or to become payable to or for the benefit date of any of the Business Employees, this Agreement or (ii) increasedmaterial grievances or other material labor disputes pending since January 1, augmented or improved benefits granted 2020 to or for the benefit date of any of this Agreement or, to the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, threatened by or received notice from any Governmental Entity on behalf of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Transferred Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;group of Transferred Employees of the Seller.
(c) violated any Laws in any There are no material respect with respect complaints, charges or claims against the Seller pending or, to employment and employment practicesthe Seller’s Knowledge, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeesthreatened that could be brought or filed, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator Body based on, arising out of, in connection with, with or otherwise relating to alleged violation the employment or termination of employment, or failure to employ by the Seller, of any individual in connection with the Business. Except as set forth on Part 2.18(c) of the Disclosure Schedule, the Seller is currently in compliance in all material respects with all applicable legal requirements relating to the employment Laws;of the Transferred Employees, including those related to wages, hours, collective bargaining, labor, and the payment and withholding of Taxes and other sums required to be withheld.
(d) The Seller has made available to the Purchaser an accurate and complete list of all Designated Employees (on an anonymized basis if required by applicable Law), setting forth such Person’s (i) name, (ii) current job title, (iii) location of employment, (iv) 2022 annual salary, (iv) current annual salary, (v) length of employment with the Seller, and (vi) 2022 bonus, if any.
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except Except as set forth in 3.15(hon Part 2.18(e) of the Disclosure Schedule (on an anonymized basis if required by applicable Law), the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been is not party to any petition for recognition material written or representation rights with oral employment, retention, service or consulting agreement relating to any Governmental Entity one or more Transferred Employees; provided that with respect to any Business Employees; or
(k) committed any violation such agreements that are terminable at will and without penalty on less than 30 days’ notice, without severance, change in any material respect of any labor Laws of any jurisdiction where control or similar payments or benefits, only the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining forms thereof need to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(lbe listed on Part 2.18(e) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)Schedule.
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Employment Matters. (a) Except as identified in Schedule 5.17(a)(i), there are no employment, consulting, severance or indemnification arrangements, arrangements which contain change of control provisions, agreements, or understandings between either Skypersonic or any Subsidiary and any officer, director, consultant or employee. Schedule 5.17(a)(ii) contains the names, job descriptions and annual salary rates and other compensation of all officers, directors, employees and consultants of Skypersonic and each Subsidiary (including compensation paid or payable under the Plans (as hereafter defined)), and a list of all employee policies (written or otherwise), employee manuals or other written statements of rules or policies concerning employment, including working conditions, vacation and sick leave, a complete copy of each of which (or a description, if unwritten) has been delivered to Parent.
(b) Skypersonic and each Subsidiary has complied with all applicable employment Laws, including Laws relating to payroll and related obligations, benefits, and social security and, except as identified in Schedule 5.17(b), Skypersonic does not have any obligation in respect of any amount due to employees of Skypersonic and each Subsidiary or government agencies, other than normal salary, other fringe benefits and contributions accrued but not payable on the date hereof.
(c) Schedule 5.17(c) sets forth a complete list of all pension, retirement, share purchase, share bonus, share ownership, share option, profit sharing, savings, medical, disability, hospitalization, insurance, deferred compensation, bonus, incentive, welfare or any other material employee benefit plan, policy, agreement, commitment, arrangement or practice currently or previously maintained by Skypersonic and each Subsidiary for any of its directors, officers, consultants, employees or former employees (the “Plans”). Without limiting the generality of Section 3.15 5.11, each Plan has been administered in accordance with its terms and applicable Law. With respect to the Plans, (i) no event has occurred and there exists no condition, facts or circumstances, which could give rise to any liability of Skypersonic or any Subsidiary under the terms of such Plans or any applicable Law, (ii) each of Skypersonic and each Subsidiary has paid or accrued all amounts required under applicable Law and any Plan to be paid as a contribution to each Plan through the date hereof, (iii) each of Skypersonic and each Subsidiary of the Seller Disclosure Schedule contains a true and complete listing Company has set aside adequate reserves to meet contributions which are not yet due under any Plan, (iv) the fair market value of the names assets of all Business Employeeseach funded Plan, the liability of each insurer for any Plan funded through insurance or the book reserve established for any Plan, together with accrued contributions, is sufficient to procure or provide for the following information accrued benefit obligations, as of the date hereof Closing Date, with respect to all current and former participants in such Plan according to the actuarial assumptions and valuations most recently used to determine employee contributions to such Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations, and (v) each such employee: (a) job titlePlan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities. No Plan has been and, to Principal Sellers’ Knowledge, no event has occurred prior to the Effective Date which would cause or require a Plan to be, (bi) locationterminated, (cii) date amended in any manner which would directly or indirectly increase the benefits accrued, or which may be accrued, by any participant thereunder or (iii) amended in any manner which would materially increase the cost to either Skypersonic or any Subsidiary or Buyer of hire (and service start date if maintaining such date is different from date Plan. No Plan provides retiree medical or retiree insurance benefits to any Person. Except as disclosed or noted in Schedule 5.17(b) or in the Financial Statements, there are no amounts due or owing to any employee of hire)Skypersonic or any Subsidiary of the Company for any accrued salary, (d) base remuneration, compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee statusand/or benefit, including, if on leavewithout limitation, the type of leave, and (g) hours of amounts due for accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable leave or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
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Employment Matters. (a) Section 3.15 3.17(a) of the Seller Disclosure Schedule contains a true sets forth the (i) name, (ii) hiring date, (iii) title, (iv) status (full-time or part-time employee status), (v) work location, (vi) employing entity, (vii) basis for work authorization (citizenship or immigration status, including visa information, if applicable), (viii) annual salary or applicable base wages, (ix) exemption status, (x) any commission and complete listing bonus opportunities (target, maximum and any amounts paid in respect of the names current and immediately preceding calendar years), and (xi) any contractual or statutory severance obligations, (xii) any leave status and applicable return to work date, of each Employee as of a date that is not more than three (3) days prior to the date of this Agreement.
(b) In all Business material respects, the Company is and, in the last two (2) years, has been in compliance with all applicable Labor Laws pertaining to employment and employment practices to the extent they relate to Employees. Except as set forth in Section 3.17(b) of the Disclosure Schedules, together there are no actions, audits, suits, claims, investigations or other legal proceedings against the Company pending, or to the Company’s Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitral tribunal in connection with the following information employment or termination of employment of any current or former applicant, employee, consultant, or independent contractor of the First Heritage Entities, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, wage and hour, overtime, classification as exempt and non-exempt, meals and rest breaks, occupational safety and health, drug testing, employee whistle-blowing, immigration, employee privacy, disability and accommodations, equal pay, background checks, leaves of absence, disability accommodations, paid sick leave and vacation, classification of employees, consultants and independent contractors, all applicable orders issued by a Governmental Authority relating to COVID-19, or any other employment related matter arising under applicable Labor Laws. All individuals characterized and treated by First Heritage Entities as consultants or independent contractors of the First Heritage Entities are properly treated as independent contractors under Labor Laws. All Employees classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified as exempt. As of the date hereof with respect hereof, all compensation payable to each such employee: (a) job titleEmployees, (b) locationindependent contractors, (c) date or consultants of hire (and service start date if such date is different from date of hire)the First Heritage Entities that are required to be paid, (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other would otherwise be paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor on or before the date of this Agreement have been paid in full and there are no outstanding agreements, understanding, or commitments of the First Heritage Entities regarding any compensation, wages commissions, bonuses, or fees, excepts those agreements, understandings, or commitments entered into in the ordinary course of its Affiliates hasbusiness.
(c) Section 3.17(c) of the Disclosure Schedule sets forth all Persons that have within the past one (1) year had a contracting, consulting, advisory, or similar relationship with the First Heritage Entities (including, for the avoidance of doubt, any workers leased, seconded, or outsourced from another entity, other than the Company) including: (i) increased the compensation payable or to become payable to or for the benefit name of any of the Business Employeessuch service provider, or (ii) increasedthe engaging entity, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(aiii) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
termination date (b) been delinquent in payments to any Business Employee for any wages (including overtime compensationif any), salaries(iv) a description of services, commissions(v) the affiliated third-party entity (if applicable), bonuses (vi) any pay arrangement or other direct compensation for services, (vii) any services performed by them or any amounts required to be reimbursed to such Business Employees;
prior dates of service (c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Lawif applicable), equal employment opportunities and affirmative action, employee privacy, and fair employment practices(vii) the location of services. The Business Company has filed made available to Parent an accurate and maintained all records and reports pertaining to equal employment opportunities required complete copy of each contract with each such Person under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of which any claims, damages, fines, penalties, First Heritage Entity has any ongoing obligation or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqliability., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced No First Heritage Entity has recognized or agreed to recognize any strikelabor union or other collective bargaining representative, work slowdownnor has any labor union or other collective bargaining representative been certified as the exclusive bargaining representative of any Employee, other material work stoppage, picketing, handbilling, (ii) no First Heritage Entity is or bannering due has been a party to or bound by any collective bargaining agreement applicable to any organizing activities Employee and no collective bargaining agreements are being negotiated, (iii) no works council, economic committee or any other material form of employee representative body exists or has existed at any First Heritage Entity, (iv) there is no labor dispute strike or labor disputes, low down, lockout or stoppage actually pending or, to Seller’s Knowledgethe Knowledge of Company, threatened against a First Heritage Entity, and in the Business;
last two (j2) recognized years, the First Heritage Entities have not experienced any labor organization as the representative of any Business Employeesstrikes or material labor disputes, received any demand for recognition from any labor organizationslowdowns, lockouts or been party to any petition for recognition stoppages, (v) no First Heritage Entity is or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation has engaged in any material respect of any unfair labor Laws of any jurisdiction where practices, and, in the Business Employees are employedlast two (2) years, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints before any Governmental Authority are, has been pending or, to the Knowledge of the Company, threatened against any First Heritage Entity and (vi) to the Knowledge of Company, no labor union or other collective bargaining representative claims to or is seeking to represent any Employee and no union organizational campaign or representation petition is currently pending with respect to any Governmental Entity alleging any violations of applicable labor Laws pending against Employees.
(e) In the Seller or any of its Affiliates pertaining to the Business or any Business Employeeslast three (3) years, and Seller and its Affiliates there have not been subject any plant closings, mass layoffs or other terminations of employees which would create any obligations upon or liabilities for the First Heritage Entities under the Worker Adjustment and Retraining Notification Act, as amended (the “WARN Act”), or similar laws. The First Heritage Entities have no plans as of the date hereof to undertake any remedial order issued by action in respect of the Employees that would trigger the WARN Act or any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsmini-WARN Act.
(lf) Section 3.15(lThe First Heritage Entities are not parties to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment. The First Heritage Entities have maintained workers compensation insurance at all times required by Law.
(g) To the Knowledge of the Seller Disclosure Schedule contains a complete and accurate description Company, in the past two (2) years, there have been no allegations of sexual harassment or sexual misconduct involving any current or former director, officer, manager or employee of the substance First Heritage Entities. In the past two (2) years, neither the Company nor any First Heritage Entity has entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by any current or former director, officer, manager or employee of the oral notification provided by Seller First Heritage Entities.
(h) All current and former Employees, are or were during their employment with the First Heritage Entities, authorized to represented Business Employees on work in the transactions contemplated by this AgreementUnited States in accordance with applicable Laws, including but not limited to the description Immigration and Naturalization Act, as amended, and the regulations promulgated thereunder. No allegations of immigration-related unfair employment practices have been made against any of the treatment First Heritage Entities, or to the Knowledge of the pension plan included Company, threatened to be filed with the Equal Employment Opportunity Commission or the Special Counsel for Immigration-Related Unfair Employment Practices, or any other Governmental Authority. First Heritage Entities have completed and retained in Section 5.5(b)(iii)accordance with all applicable Laws a Form I-9 for all Employees working in the United States.
(i) The First Heritage Entities are not and, in the past three (3) years, have not been a contractor or subcontractor for the U.S. federal government as defined by the Office of Federal Contract Compliance Programs.
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Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, All material benefit and compensation plans (bthe “Company Benefit Plans”) location, (ccovering Employees are listed in Section 3.11(a) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;Company Disclosure Schedule.
(b) been delinquent Except as provided herein, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in payments conjunction with another event, such as a termination of employment) will (i) result in any payment becoming due to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses current or other direct compensation for any services performed by them former director or current or former employee of the Company or any amounts required to be reimbursed to of its Subsidiaries under any of the Company Benefit Plans or otherwise; (ii) increase any benefits otherwise payable under any of the Company Benefit Plans; or (iii) result in any acceleration of the time of payment or vesting of any such Business Employees;benefits.
(c) violated any Each Group Company is in compliance with all applicable Laws in any material respect with respect relating to employment and employment practices, including those related to wages, work hours, shifts, overtime, holidays and leave, collective bargaining terms and conditions of employment and wages the payment and hours in connection withholding of social security Taxes or any other Taxes and other sums as required by the appropriate Governmental Authority, except as would not constitute a Material Adverse Effect. There is no charge or proceeding with the employment respect to a violation of any Business Employeesoccupational safety or health standards that has been asserted or is now pending or threatened with respect to any Group Company, including or any such Laws relating to wages and hourscharge of discrimination in employment or employment practices, payment of wagesfor any reason, child laborincluding, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital statuswithout limitation, age, gender, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification legally protected by law category, which has been asserted or retaliation for exercise is now pending or, to the knowledge of rights under applicable Law)the Company, equal employment opportunities and affirmative actionthreatened before any Governmental Authority in any jurisdiction in which any Group Company has employed or employ any Person, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;that would constitute a Material Adverse Effect.
(d) With respect to each Company Benefit Plan, (i) all material payments due from the Company or Subsidiaries to the date hereof have been liable for made and all material amounts properly accrued to the payment of any claims, damages, fines, penaltiesdate hereof, or other amounts as of the Closing Date, as liabilities of the Company and Subsidiaries that have not been paid have been properly recorded on the books of the Company and (ii) there are no pending or, to any current the knowledge of the Company, threatened proceedings or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with order by any Governmental Entity requiring continuing compliance Authority with respect to such Company Benefit Plan or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any assets of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or such Company Benefit Plan (other than routine claims for benefits) that would constitute a Material Adverse Effect. Each Company Benefit Plan is and has at all times been operated and administered in material compliance with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;the provisions thereof and all applicable legal requirements.
(e) materially violated The Company is not obligated, other than pursuant to the Company Benefit Plans, to grant any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations options or other proceedings under applicable occupational safety and health Laws rights to purchase or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard acquire Shares to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act Employees, consultants or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 directors of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of Company after the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsdate hereof.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure (a) Schedule 3.15(a) contains a true and complete listing of the names list of all persons employed by Sellers (x) to work at the Linden Facility or Richmond Facility, or (y) whose duties and responsibilities are primarily to service the P&F Business Employees, together with the following information as of the date hereof with respect to of this Agreement (the “Relevant Team Employees”), including any such person who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeindividual the following: (ai) job titlename; (ii) title or position; (iii) hire date; (iv) whether full-time or part-time and whether exempt or non-exempt; (v) whether subject to an employment agreement (other than an offer letter that promises neither employment for any particular duration of time, advance notice of termination, or severance of any kind); (bvi) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if whether on leave, and if so, the date such leave commenced, the type of leavesuch leave (personal, medical, bereavement, etc.), and the anticipated date of return from leave; (gvii) hours of annual salary or hourly rate and if applicable, bonus target or other incentive compensation eligibility; and (viii) any accrued vacation, sick days, personal days, float days and any other but unused vacation or paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;.
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or Neither Seller is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects collective bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any a labor organization representing any Business Relevant Team Employees;. Since January 1, 2020, there has not been, nor, to the Knowledge of Sellers, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor dispute involving the Relevant Team Employees.
(hc) Sellers are in compliance with all applicable Laws pertaining to employment and employment practices to the extent they relate to the Relevant Team Employees, including all Laws relating to labor relations, equal employment opportunity, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages and hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, occupational safety and health, workers’ compensation, leaves of absence, and unemployment insurance, except for any failure to so comply that would not reasonably be expected to result in a Material Adverse Effect. All Relevant Team Employees classified as set forth exempt under the Fair Labor Standards Act and/or any state or local wage and hour laws are properly classified in 3.15(hall respects, except for any improper classification that would not reasonably be expected to result in a Material Adverse Effect. Except as described in Schedule 3.15(c), there are no Actions against Sellers pending, or to the Knowledge of Sellers, threatened, or potentially threatened, to be brought or filed, by or with any Governmental Authority or arbitrator arising out of or relating to the employment of any current or former Relevant Team Employee, including any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, disability, equal pay, occupational safety and health, leave(s) of the Seller Disclosure Scheduleabsence, been involved in negotiations with minimum wage, unpaid overtime or any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeesother wage and hour concerns, or any effects bargaining agreement, neutrality or card-check recognition agreement, other employment related matter.
(d) No Relevant Team Employee who is an executive officer or other labor agreement;key employee of Sellers is subject to any noncompete, nonsolicitation, nondisclosure, confidentiality, employment, consulting or other agreement that has a Material Adverse Effect on the P&F Business and, to the Knowledge of Sellers, no Relevant Team Employee who is an executive officer or other key employee of Sellers has taken steps or is otherwise planning to terminate his or her employment for any reason (or no reason), other than to commence employment with the Buyer.
(ie) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to To Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization and except as the representative would not be expected to result in a Material Adverse Effect, Sellers have investigated or reviewed all sexual harassment or other unlawful harassment, discrimination or retaliation complaints made in writing or orally to a member of any Business Employeesmanagement or human resources personnel since January 1, received any demand for recognition from any labor organization2020 involving Relevant Team Employees and, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; oreach complaint with merit, Sellers have taken corrective action that is reasonably calculated to end the unlawful behavior.
(kf) committed any violation Except as would not be expected to result in any material a Material Adverse Effect, a Form I-9 has been completed and retained with respect of any labor Laws of any jurisdiction to each current Relevant Team Employee and, where required by law, former employees at the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158Facilities. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates Sellers have not been the subject of any audit or other action, suit, proceeding, claim, demand, assessment or judgments nor, to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations Knowledge of applicable labor Laws in connection with Sellers, have Sellers been the Business any time in subject of an investigation, inquiry, audit or other action, suit, proceeding, claim, demand, assessment or judgments from the last three years.
(l) Section 3.15(l) U.S. Department of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this AgreementHomeland Security, including the description of Immigration and Customs Enforcement, (or any predecessor thereto, including the treatment of U.S. Customs Service or the pension plan included in Section 5.5(b)(iii)Immigration and Naturalization Service) or any other immigration-related enforcement proceeding.
Appears in 1 contract
Samples: Asset Purchase Agreement (Blue Apron Holdings, Inc.)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains Purchaser has been provided a true and complete listing of the names list of all Business Employeesofficers and employees of each Corporation, together with the following information as years of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leaveservice, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if anytheir annual salary or hourly wages. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates hasExcept as set forth on Schedule 3.15 attached hereto:
(a) to Seller’s KnowledgeNo present or past employee of either Corporation has any written or oral, employed express or implied, contract, agreement, arrangement or understanding of any Business Employee who is not legally eligible nature whatsoever, including without limitation, any plans or contracts providing for employment under applicable immigration Lawsbonuses, violated any applicable Laws pertaining to immigration and work authorizationseverance payments, pensions, profit sharing, stock options, stock purchase rights, deferred compensation, insurance, or received notice from any Governmental Entity retirement benefits of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”nature;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation)There is no pending or threatened labor dispute, salariesstrike, commissionswork stoppage, bonuses grievance, claim of unfair labor practice, wrongful discharge, employment discrimination, or other direct compensation for any services performed by them sexual harassment, or any amounts required to be reimbursed to such Business Employeesother employment dispute of any form or nature affecting either Corporation;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected Each Corporation has withheld all amounts required by law or retaliation agreement to be withheld from the wages or salaries or any other form of compensation of its employees and has no unaccrued liability for exercise any wages or vacation pay, sick pay, bonuses or other incentives or for any taxes or penalties for failure to pay any of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar recordsthe foregoing;
(d) been liable for the payment of any claims, damages, fines, penalties, No union or other amounts collective bargaining unit has been certified or recognized by any Corporation as representing any employee nor, to any current or former Business Employeesthe Knowledge of Sellers, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, a union or other agreement with any Governmental Entity requiring continuing compliance collective bargaining unit seeking certification or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;recognition for such purpose.
(e) materially violated None of the Corporations have any Laws regulating occupational safety and health includingwritten or oral policy, but not limited toagreement or understanding regarding vacation and/or severance pay requirements. Except as disclosed on Schedule 3.15(e), the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqconsummation of the transaction contemplated by this Agreement will not entitle any employee of the Corporations to severance pay., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff Each of Business Employees that could require notice (without regard to any actions that could be taken the Corporations has obtained and maintained Employment Eligibility Verifications on Forms I-9 as required by the Buyer following the Closing) under applicable Laws (including the WARN Immigration Reform and Control Act or any similar state Laws);of 1986; and
(g) been a party toEach Corporation has complied with applicable laws relating to collective bargaining, or bound bywages, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employeeshours, and Seller age, race, disability, and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearssex discrimination.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 (i) The Company is not a party to any written employment, consultant, service or pension agreement, benefit plan or collective agreement relating to the Business except as described in Schedule 4.1(y)(i).
(ii) All vacation pay accrued up to the Effective Date has been paid by the Company such that on the Effective Date there is no vacation pay owing to the employees and consultants of the Seller Disclosure Schedule contains a true and complete listing Company or any former employees or consultants of the names of Company and the Company shall, immediately prior to the Closing Date, pay all Business Employees, together with vacation pay accrued and owing to the following information as employees or consultants of the Company (and any former employees of the Company) in respect of the period between the Effective Date and the Closing Date.
(iii) The individuals listed on Schedule 4.1(y)(iii) hereto are the only employees and consultants of the Company on the Effective Date and shall be the only employees and consultants of the Company on the Closing Date. The date hereof of birth, hire date, salary and bonuses for the past three years and title of each employee and consultant is set out on Schedule 4.1(y)(iii).
(iv) The Company has satisfied all of its obligations and liabilities to its employees, consultants, former employees and former consultants arising out of their engagement under all applicable Employment Laws, including those with respect to each such employee: any and all lay-offs and terminations of any employees and is in compliance with all applicable Employment Laws.
(v) The Company has not made and are not otherwise bound by any Contracts with any labour union or employee association.
(vi) Except for the plans listed on Schedule 4.1(y)(vii) (the “Employee Plans”), (a) job title, (b) location, (c) date of hire (and service start date if such date the Company has no Contracts nor is different from date of hire), (d) base compensation rate, (e) commission, bonus it bound or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees otherwise liable under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable Contracts for the payment of any claimsbonus, damageswork incentive, finesprofit sharing, penaltiessavings, retirement, deferred compensation, stock option, stock purchase, pension, hospitalization, medical, dental, vision care, drug, sick leave, life insurance, weekly indemnity, long term disability, supplemental unemployment benefit, legal assistance, or any other amounts sort or type of benefit or insurance plan, whether self-insured or otherwise, (b) the Company is not bound by or otherwise liable for, and has not been bound by or otherwise liable for in the past, any “employee pension benefit plan” as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (the “Pension Plans”) or any “employee welfare benefit plan”, as defined in Section 3(1) of ERISA, (the “Welfare Plans”), and (c) the Company does not maintain, administer or contribute to, and has never maintained, administered or contributed to, any Pension Plans and/or Welfare Plans.
(vii) The Vendors have delivered or has caused to be delivered to Purchaser true and complete copies of the Employee Plans (including any current amendments, related trust agreements, custodial agreements, insurance contracts, investment contracts and other funding arrangements, if any, and adoption agreements, if any, and summary plan descriptions, employee communications and Forms 5500).
(viii) There has been no amendment to, written interpretation or former Business Employees, however designated, for failure to comply with any employment Lawsannouncement (whether or not written) by the Company relating to, or is party change in employee participation or coverage under any Employee Plan that would increase materially the expense of maintaining such Employee Plan above the level of expense incurred in respect of such Employee Plan for the most recent plan year with respect to Employee Plans.
(ix) Each Employee Plan has been maintained in compliance with its terms and the requirements prescribed by any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. and all applicable Laws.
(x) There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledgethe knowledge of Vendors, threatened (A) claims, suits or other proceedings by any employees, former employees, consultants, former consultants or plan participants or the beneficiaries, spouses or representatives of any of them, other than ordinary and usual claims for benefits by participants or beneficiaries, or (B) suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority, of or against any Employee Plan, the Business;assets held thereunder, the trustee of any such assets or the Company relating to any of the Employee Plans.
(jxi) recognized The Company has not engaged (A) in any labor organization as transaction or acted or failed to act in a manner that violates the representative fiduciary requirements of any Business Employees, received any demand for recognition from any labor organizationSection 404 of ERISA, or been party to (B) in any petition for recognition “prohibited transaction” within the meaning of Section 406(a) or representation rights with any Governmental Entity 406(b) of ERISA, or of Section 4975(c) of the Code or other applicable law, with respect to any Business Employees; orEmployee Plans.
(kxii) committed No liability has been incurred by the Company or by a trade or business, whether or not incorporated, which is or has been deemed to be under common control or affiliated with the Company within the meaning of Section 4001 of ERISA or Section 414(b), (c), (m) or (o) of the Code (an “ERISA Affiliate”), for any violation Tax, penalty or other liability with respect to any Employee Plan. Each ERISA Affiliate is listed on Schedule 4.1(y)(xii).
(xiii) Neither the Company nor any ERISA Affiliate has ever maintained, adopted or established, contributed or been required to contribute to, or otherwise participated or been required to participate in, nor will they become obligated to do so through the Closing Date, any (i) pension plan covered by Title IV or ERISA or (ii) “multiemployer plan” (as defined in any material respect Section 3(37) of any labor Laws of any jurisdiction where the Business Employees are employedERISA).
(xiv) No Employee Plan provides benefits, including any violations of Section 8 severance or other post-employment benefit, salary continuation, termination, death, disability or health or medical benefits (whether or not insured), life insurance or similar benefit with respect to current or former employees (or their spouses or dependents) of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges Company beyond their retirement or complaints pending with any Governmental Entity alleging any violations other termination of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsservice.
(lxv) Section 3.15(lNo notice has been received by the Company of any complaints filed by any employees or consultants against the Company claiming that the Company has violated any Employment Law.
(xvi) There are no actual or, to the knowledge of the Seller Disclosure Schedule contains a complete and accurate description Vendors, threatened actions for wrongful dismissal involving any former employee of the substance Company.
(xvii) The consummation of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this AgreementAgreement will not accelerate the time of payment or vesting under any Employee Plan nor obligate the Company to provide any change in control payments, including stay bonuses, severance pay or other such payments.
(xviii) Each Employee Plan may be amended or terminated by the description of the treatment of the pension plan included in Section 5.5(b)(iii)Company at any time, for any reason, and without liability therefor.
Appears in 1 contract
Samples: Securities Purchase Agreement (Peace Arch Entertainment Group Inc)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleOther than as disclosed to BioRegenx, (b) locationDocSun does not have any employees. DocSun is not a party to any employment, (c) date management or consulting agreement of hire (and service start date if such date is different from date of hire)any kind whatsoever, (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leaveany collective bargaining agreement, and (g) hours of accrued vacationfurther, sick dayshas not entered into any written or oral agreement or understanding providing for bonuses, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable severance or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in termination payments to any Business Employee for any wages director, officer or employee in connection with the termination of their position or their employment as a direct result of a change in control of DocSun (including overtime compensationas a result of the Transaction), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;.
(cb) violated any Laws DocSun is in any compliance with all material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeesall Applicable Laws respecting employment, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Actpay equity, 29 U.S.C. §§ 651wages, et seq.hours of work, or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Businessovertime, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety safety, workers compensation and human rights. DocSun is not subject to (i) any outstanding grievance, complaint, investigation, orders under Applicable Laws respecting employment, or (ii) any proceeding, claim, or litigation relating to wrongful dismissal, constructive dismissal, unfair labour practice, or tort, in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining each case relating to occupational health and safety required by any occupational safety and health Laws employment, or any Governmental Entity (including OSHA)termination of the employment of employees or the termination of the engagement of independent contractors, including OSHA-300 injury logs. Furtherand to the knowledge of DocSun, Seller no such proceeding, claim, or litigation is threatened, and its Affiliates maintain workers’ compensation coverage there is no basis for all Business Employees in accordance with applicable Laws;any such proceeding, claim, or litigation.
(fc) implemented any plant closingDocSun has not implemented, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been and is not a party to, any employee or bound bybenefit plans (including, without limitation, any Collective Bargaining Agreementplans or agreements providing for benefits to employees (such as, effects bargaining agreement, neutrality dental or card-check recognition agreementmedical plans, or other labor agreement within plans providing for retention bonuses, severance, or termination payments). Without limiting the definition of Section 301 generality of the Labor Management Relations foregoing, DocSun does not currently sponsor, maintain, contribute to or has any liability under, nor has ever sponsored, maintained, contributed to or incurred any liability under a “registered pension plan” or a “retirement compensation arrangement”, each as defined under the Tax Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except a “pension plan” as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeesdefined under applicable pension benefits standards legislation, or any effects bargaining agreementother plan organized and administered to provide pensions for employees or former employees of any member of DocSun.
d) DocSun has operated in all material respects in accordance with all Applicable Laws with respect to employment and labour, neutrality or card-check recognition agreementincluding employment and labour standards, or other labor agreement;
(i) experienced any strikeoccupational health and safety, work slowdownemployment equity, other material work stoppagepay equity, picketingworkers’ compensation, handbillinghuman rights, or bannering due to any organizing activities or other material labor dispute pending labour relations and privacy, and there are no current, pending, or, to Seller’s Knowledgethe knowledge of DocSun, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, actions or been party to any petition for recognition or representation rights with proceedings before any Governmental Entity Authority with respect to any Business Employees; orsuch matters.
e) Neither the execution of this Agreement nor the consummation of the Transaction and the other transactions contemplated in this Agreement will (ki) committed any violation result in any material respect of any labor Laws of any jurisdiction where the Business Employees are employedpayment (including severance, including any violations of Section 8 of the National Labor Relations Act as amendedunemployment compensation, 29 U.S.C. § 158. There are currently no unfair labor practice charges “golden parachute”, bonus or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject otherwise) becoming due to any remedial order issued by Person or other entity including, but not limited to, any Governmental Entity director, officer, employee or consultant of DocSun, or (including ii) increase the National Labor Relations Board) for violations rate of applicable labor Laws in connection with the Business wages, salaries, commissions, bonuses, incentive compensation or other remuneration, severance entitlements, or benefits otherwise payable to any time in the last three yearscurrent or former employee of DocSun.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
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Employment Matters. (a) Section 3.15 4.17(a) of the Seller Disclosure Schedule Schedules contains a true and complete listing list of all persons who are employees, independent contractors or consultants of the names of all Business Employees, together with the following information as of the date hereof with respect to hereof, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full or part time); (iii) date of hire date; (and service start date if such date is different from date of hire), (div) current annual base compensation rate, ; (ev) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, incentive-based compensation; and (gvi) hours a description of accrued vacationthe fringe benefits provided to each such individual as of the date hereof. Except as set forth in Section 4.17(a) of the Disclosure Schedules, sick daysas of the date hereof, personal daysall compensation, float days including wages, commissions and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become bonuses payable to employees, independent contractors or for the benefit of any consultants of the Business Employeesfor services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller with respect to any compensation, commissions or bonuses.
(iib) increasedSeller is and has been in compliance with the terms of all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of the Business, augmented including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or improved benefits granted to benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence and unemployment insurance. All individuals characterized and treated by Seller as consultants or for the benefit of any independent contractors of the Business Employees qualify as and are properly treated as independent contractors under any all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws qualify as and are properly classified. There are no Actions against Seller Benefit Plan. At any time in pending, or to the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Lawsthreatened to be brought or filed, violated any applicable Laws pertaining to immigration and work authorization, by or received notice from with any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses Authority or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours arbitrator in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employeesapplicant, however designatedemployee, for failure to comply with any employment Lawsconsultant, volunteer, intern or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any independent contractor of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, wages and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA hours or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with other employment related matter arising under applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
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Employment Matters. Section 3.15 (a) The Sellers have previously provided the Purchaser a correct and complete list, on an anonymized basis, of the following with respect to each Employee of the Business as of September 9, 2016: (i) base salary (or other base rate of pay) as of such date and as of October 1, 2016, (ii) all variable compensation, including 2016 bonus entitlement and any sales commission or other incentive pay entitlements, (iii) all equity grants made during 2015 and 2016, (iv) continuous service date (including credited years of service recognized by the Sellers), (v) primary geographic location of employment (city and country) and (vi) whether such Employee of the Business is active or on leave of absence (and whether such leave of absence is due to medical disability or otherwise).
(b) Except as set forth on Schedule 3.14(b) of the Seller Disclosure Schedule contains a true and complete listing Schedule, each member of the names of all Business Employees, together with Seller Group and the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasAcquired Company: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time has been in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any compliance in all material respects with all applicable Laws pertaining to immigration and work authorizationrespecting employment, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages employment practices (including overtime compensationhealth and safety regulations), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practicesimmigration, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wagesin each case, child labor, family and medical leave, access with respect to facilities and employment opportunities for disabled persons, employment discrimination the Transferred Employees; (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected ii) has withheld all amounts required by law or retaliation for exercise of rights under applicable Law)by agreement to be withheld from the wages, equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans salaries and other similar records;
payments to the Transferred Employees; (diii) been other than in respect of ordinary compensation and payroll practices, is not liable for any arrears of wages with respect to the Transferred Employees; and (iv) is not liable for any material payment of to any claims, damages, fines, penalties, trust or other amounts fund or to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance with respect to unemployment compensation benefits, social security or reporting other benefits or obligations entered into for the Transferred Employees (other than routine payments to resolve any labor or employment matterbe made in the normal course of business and consistent with past practice). There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against The Acquired Company and each member of the Seller or any of its Affiliates pertaining Group is, with respect to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out ofthe Transferred Employees, in connection withcompliance in all material respects with the terms and provisions of the Immigration Reform and Control Act of 1986, or otherwise relating to alleged violation of any employment Laws;as amended.
(ec) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except Except as set forth in 3.15(hon Schedule 3.14(c) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business respect to the Transferred Employees, no member of the Seller Group or any effects bargaining agreementAcquired Company is a party to, neutrality or card-check recognition agreementbound by, or other labor agreement;
(i) experienced negotiating any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities collective bargaining agreement or other material Contract with a union, works council or labor dispute organization. No work stoppage or labor strike by the Transferred Employees is pending or, to Seller’s Knowledgethe Knowledge of the Sellers, threatened against or anticipated. To the Business;
(j) recognized Knowledge of the Sellers, there are no activities or proceedings of any labor organization union to organize any Transferred Employees. Except as set forth on Schedule 3.14(c) of the representative Seller Disclosure Schedule, there are no actions, suits, claims, labor disputes, grievances or other Legal Proceeding pending or, to the Knowledge of any Business Employeesthe Sellers, received any demand for recognition from any labor organization, or been party threatened in writing relating to any petition for recognition labor, safety or representation rights with discrimination matters involving any Governmental Entity with respect to any Business Employees; or
(k) committed any violation Transferred Employee, including charges of unfair labor practices or discrimination complaints, which, if adversely determined, would, individually or in the aggregate, result in any material liability to the any member of the Seller Group or the Acquired Company. With respect to the Business, no member of the Seller Group nor the Acquired Company has engaged in any unfair labor Laws of any jurisdiction where practices within the Business Employees are employed, including any violations of Section 8 meaning of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsAct.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 (a) Except as set forth on Schedule 5.17(a) of the Seller Disclosure Schedule contains Schedule, (i) no Acquired Company is a party to, bound by, otherwise subject to or negotiating in respect of any Collective Bargaining Agreement nor is any employee of the Acquired Companies represented by any Union; (ii) there are no pending or, to the Knowledge of the Company, threatened, labor disruptions or activities, including any labor strikes, work stoppages, slowdowns, lockouts, handbilling, picketing, grievances, unfair labor practice charges or complaints, labor arbitration proceedings, organizing activities, or petitions or demands for representation involving any employee of the Acquired Companies, and no Acquired Company has experienced any such labor disruption or activity for the past three (3) years; and (iii) no notice, consent or consultation obligations with respect to any employees of the Acquired Companies, or any Union, will be a condition precedent to, or triggered by, the execution of this Agreement or the consummation of the transactions contemplated hereby.
(b) The Acquired Companies are, and for the past three (3) years have been, in compliance, in all material respects, with all applicable Laws respecting employment and employment practices and terms and conditions of employment (including minimum wage, overtime, meal and rest breaks, vacation time, sick leave and work-related expense reimbursement), child labor, withholdings and deductions, background checks and drug testing, classification and payment of employees and independent contractors, pay equity, non-discrimination, non-harassment and non-retaliation in employment, disability rights, leaves of absence, occupational health and safety workers’ compensation, plant closings and mass layoffs, immigration, and requirements applicable to employers who hold federal contracts.
(c) A true and complete listing list of the names of all Business Employees, together with the following information as employees and independent contractors of the date hereof with respect Acquired Companies has been provided to each such employeeBuyer, including the following: (ai) job title, name; (bii) title or position (including whether full or part time and whether treated as an employee or independent contractor); (iii) employing entity; (iv) classification as exempt or non-exempt for overtime pay; (v) work location, ; (cvi) date of hire (and service start date if such date is different from date of hire), (d) current annual base compensation rate, ; (evii) target annual commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, incentive-based compensation; and (gviii) hours visa status (if applicable).
(d) Except as provided on Schedule 5.17(d) of accrued vacationthe Disclosure Schedule, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable no current executive or to become payable to or for the benefit key employee of any of the Business EmployeesAcquired Companies (i) to the Knowledge of the Company, has given notice of termination of employment or otherwise disclosed plans to terminate employment with an Acquired Company, (ii) increased, augmented is employed under a non-immigrant work visa or improved benefits granted to other work authorization that is limited in duration or for (iii) has been the benefit subject of any of the Business Employees under any Seller Benefit Plan. At any time in the last three yearssexual or other discrimination, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorizationharassment, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses misconduct allegations during his or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection her tenure with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;Acquired Companies.
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining Subject to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three (3) years.
(l) Section 3.15(l) , none of the Seller Disclosure Schedule contains a complete and accurate description Acquired Companies has implemented any reductions in force or layoffs affecting, placed on unpaid leave or furlough, or reduced the hours or weekly pay of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)fifty (50) or more employees.
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Employment Matters. (a) Section 3.15 4.20(a) of the Seller Disclosure Schedule Schedules contains a true and complete listing list of all persons who are employees, independent contractors or consultants of the names of all Business Employees, together with the following information Companies as of the date hereof with respect to hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeindividual the following: (ai) job title, name; (bii) location, title or position (cincluding whether full or part time); (iii) date of hire date; (and service start date if such date is different from date of hire), (div) current annual base compensation rate, ; (ev) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, incentive-based compensation; and (gvi) hours a description of accrued vacationthe fringe benefits provided to each such individual as of the date hereof. As of the date hereof, sick daysall compensation, personal daysincluding wages, float days commissions and bonuses, payable to all employees, independent contractors or consultants of the Companies for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of the Companies with respect to any other paid time offcompensation, if any. Since June 30, 2012commissions or bonuses, except in the ordinary course of business, neither Seller nor any of its Affiliates has: for (i) increased the compensation payable or to become payable to or discretionary bonuses for the benefit of any 2018 described on Section 4.20(a) of the Business Employees, or Disclosure Schedules and which will be paid in 2019; (ii) increasedcommissions, augmented or improved benefits granted owed in the normal course of business and paid monthly to or for employees with respect to wholesale sales in Illinois and New York; (iii) wages owed and which will be paid during the benefit of Company’s upcoming payroll cycles; and (iv) any bonuses described on Section 4.20(a) of the Business Employees under any Seller Benefit Plan. At any time Disclosure Schedules that are payable in connection with the last three years, neither consummation of the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation transactions contemplated by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;this Agreement.
(b) Except as set forth in Section 4.20(b) of the Disclosure Schedules, the Companies have never been delinquent in payments to a party to, bound by, or negotiated any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses collective bargaining agreement or other direct compensation for any services performed by them Contract with a union, works council or any amounts required to be reimbursed to such Business Employees;labor organization (collectively, “Union”).
(c) violated any The Companies are and have been in compliance all applicable Laws in any material respect with respect pertaining to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such all Laws relating to wages and labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, payment of wagesovertime compensation, child labor, family hiring, promotion and medical leavetermination of employees, access to facilities working conditions, meal and employment opportunities for disabled personsbreak periods, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)safety, including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closingcompensation, mass layoff leaves of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, absence and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsunemployment insurance.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
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Samples: Business Combination Agreement
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit Schedule 3.1(aa) contains a complete and accurate list of any all employees of the Business Vendor whose employment will be transferred to and assumed by the Company pursuant to the Canadian Drop-Down Agreement (the "Employees"), their respective positions, current salaries, bonuses, sales incentives and other remunerations with the Vendor, and all stock options, dates of last salary increases, and dates of hire with the Vendor. For greater certainty, none of the Leave Employees will be included among the Employees;
(ii) except as disclosed in Schedule 3.1(aa) and except for written offer letters which do not (i) specify a fixed or minimum period of employment, or (ii) increasedcontain any provisions regarding notice of dismissal or payment in lieu thereof, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who Company is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments currently a party to any Business Employee for written agreements with any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(ciii) violated all liabilities of the Vendor in respect of the Employees, including insurance premium contributions and assessments for employment insurance, employer health tax, Canada Pension Plan, income tax, workers' compensation and any Laws other employment related legislation, wages, Taxes, salaries, commissions and employee benefit plan payments, in each case which have become due and payable prior to the date hereof have been paid in full and all such liabilities which become due and payable prior to the Closing Date will have been paid in full on or prior to the Closing Date or will be reflected as an accrued liability on the Audited Closing Date Statement for the transaction of purchase and sale contemplated hereunder;
(iv) except as disclosed in Schedule 3.1(aa), there are no outstanding, pending, or, to the Vendor's knowledge, threatened, actions, claims, complaints, demands, orders, prosecutions or suits against the Company or the Vendor or any material of their respective directors or officers in respect with respect of the employment of the Employees in the conduct by the Vendor of the portion of the Business conducted by it, pursuant to or under any applicable rules, regulations, orders or laws relating to employment, including Canada Pension Plan, employment insurance, employment standards, labour relations, occupational health and employment practicessafety, terms human rights, workers' compensation or pay equity laws; and
(v) all vacation pay, bonuses and conditions of employment commissions and wages and hours other amounts paid or payable by the Vendor to the Employees in connection with the their employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time accurately reflected in the last five years. Seller and its Affiliates maintains all financial records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) Vendor and will be so reflected on the financial records of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or cardCompany after the Canadian Drop-check recognition agreement, or other labor agreementDown;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (bSection 4.19(a)(1) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasParent Disclosure Schedules sets forth each employee’s: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or name; (ii) increasedjob title; (iii) date on which his or her employment commenced; (iv) site of employment; (v) status as exempt or non-exempt under the Fair Labor Standards Act and applicable state wage law(s); and (vi) co- or joint-employment relationship with any party, augmented or improved benefits granted to or for the benefit of any as applicable. Section 4.19(a)(2) of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of Parent Disclosure Schedules sets forth each consultant and independent contractor engaged by Parent or its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration LawsSubsidiaries, including U.S. Social Security Administration “No-Match” letters”;such Person’s name and compensation.
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment Parent and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacyits Subsidiaries are not, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reportsnever have been, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreementcollective bargaining or other Contract with a labor union or other organization or representative representing any of its employees and no such agreement is being negotiated. To the Knowledge of Parent, effects bargaining agreementthere are no current union organizing efforts or representational demands involving the employees of Parent or its Subsidiaries and, neutrality to the Knowledge of Parent, there have been no such efforts or carddemands in the three (3) years prior to the date hereof. In the three (3) years prior to the date hereof, there has not been, nor, to the Knowledge of Parent, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting Parent or any of its Subsidiaries.
(c) Parent and its Subsidiaries are, and have been at all times in the three (3) years prior to the date hereof, in material compliance with all applicable Laws relating to labor and employment, including all such Laws relating to terms and conditions of employment, wages and hours, rest and meal breaks, overtime payments, compliance with the Fair Labor Standards Act and similar state and local laws, recordkeeping, employee notices, expense reimbursement, employee classification, non-check recognition agreementdiscrimination, non-harassment, non-retaliation, employee benefits, employee leave, payroll documents, pay stubs, record retention, expense reimbursement, employee notices, equal opportunity, immigration, occupational health and safety, the WARN Act, severance, termination or discharge, collective bargaining, government contractor and subcontractor compliance, the payment of employee welfare and retirement benefits, and the full payment of all required social security contributions and Taxes. All wages, overtime payments, bonuses and other compensation, if any, due and payable as of the Closing Date to all Employees and all other present and former employees and contractors of Parent or its Subsidiaries has been paid in full, or will be paid in full, to such individuals prior to the Closing.
(d) Except as set forth on Section 4.19(d) of the Parent Disclosure Schedules, there are no actions, suits, claims, grievances, charges, arbitrations, investigations, audits, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business EmployeesLegal Proceedings against Parent or its Subsidiaries pending, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledgethe Knowledge of Parent, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employeesto be brought or filed, received any demand for recognition from any labor organization, by or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business employment or engagement or termination of employment or engagement of any time in the last three yearscurrent or former employee or contractor of Parent or its Subsidiaries, including, without limitation, any claim relating to wages and hours, unfair labor practices, employment discrimination, meal or rest breaks, harassment, retaliation, equal pay or any other employment related matter arising under applicable Laws.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 (a) Each member of the Seller Disclosure Schedule contains a true Group and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasAcquired Company: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time has been in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any compliance in all material respects with all applicable Laws pertaining to immigration and work authorizationrespecting employment, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, classification of employees and independent contractors, immigration, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment in each case, with respect to the Employees of the Business; (ii) has paid all earned or accrued salaries, wages, child laborwage premiums, family bonuses, commissions accrued but unused paid time off, and medical leave, access to facilities other compensation that has come due and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights payable under applicable Law), equal employment opportunities and affirmative actionContract or policy; (iii) has withheld all material amounts required by Law or by agreement to be withheld from the wages, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans salaries and other similar records;
payments to the Employees of the Business and has timely transmitted such withheld amounts to the appropriate taxing authority; (div) been other than in respect of ordinary compensation and payroll practices, are not liable for any arrears of wages with respect to the Employees of the Business; and (v) is not liable for any material payment of to any claims, damages, fines, penalties, trust or other amounts fund or to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance with respect to unemployment compensation benefits, social security or reporting other benefits or obligations entered into for the Employees of the Business (other than routine payments to resolve any labor or employment matterbe made in the normal course of business and consistent with past practice). There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against The Acquired Companies and each member of the Seller or any Group are, with respect to the Employees of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, in compliance in all material respects with the terms and neither Seller nor provisions of the Immigration Reform and Control Act of 1986, as amended and the immigration Laws applicable to the Employees of the Business in any of its Affiliates applicable country. For the past three years, each Transferred Employee has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time legally authorized to work in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees job they have performed in accordance with applicable Laws;the laws and regulations of the country where they have been employed.
(fb) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except Except as set forth in 3.15(hSchedule 3.14(b) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business respect to the Transferred Employees, or no member of the Seller Group nor any effects bargaining agreementAcquired Company is a party to, neutrality or card-check recognition agreementbound by, or other labor agreement;
(i) experienced negotiating any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities collective bargaining agreement or other material Contract with a union, works council or labor dispute organization. No work stoppage or labor strike by the Transferred Employees is pending or, to the Knowledge of the Seller’s Knowledge, threatened against or anticipated. To the Business;
(j) recognized Knowledge of the Seller, there are no activities or proceedings of any labor organization as union to organize any Transferred Employees. There are no actions, suits, claims, labor disputes, grievances or other Legal Proceeding pending or, to the representative Knowledge of any Business Employeesthe Seller, received any demand for recognition from any labor organization, or been party threatened relating to any petition for recognition labor, safety or representation rights with discrimination matters involving any Governmental Entity with respect to any Business Employees; or
(k) committed any violation Transferred Employee, including charges of unfair labor practices or discrimination complaints, which, if adversely determined, would, individually or in the aggregate, result in any material liability to the any member of the Seller Group or the Acquired Companies. With respect to the Business, no member of the Seller Group nor any Acquired Company has engaged in any unfair labor Laws of any jurisdiction where practices within the Business Employees are employed, including any violations of Section 8 meaning of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsAct.
(lc) Section 3.15(l) No member of the Seller Disclosure Schedule contains a complete and accurate description Group has implemented any location closing or employee layoffs in violation of the substance Worker Adjustment and Retraining Notification Act of 1988 (the oral notification provided by Seller to represented Business Employees on WARN Act) or any similar state, local or foreign Law in the transactions contemplated by this Agreementpast five (5) years and no such actions are currently contemplated, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)planned or announced.
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except Other than as disclosed in the ordinary course of business, neither Seller nor any of its Affiliates has: Buyer Public Documents:
(i) increased there has not been in the compensation payable last two years and there is not currently any labour disruption, grievance, arbitration proceeding or other conflict which could reasonably be expected to become payable to have a Material Adverse Effect on the Buyer’s or for the benefit of any of the Business EmployeesBuyer Subsidiaries’ business, or (ii) increasedtaken as a whole, augmented or improved benefits granted to or for and the benefit of any Buyer and each of the Business Employees under any Seller Benefit Plan. At any time Buyer Subsidiaries is in the last three years, neither the Seller nor any compliance with all provisions of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable all Applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to respecting employment and employment practices, terms and conditions of employment and wages and hours in connection hours, except where non-compliance with the employment of any Business Employees, including any such Laws relating provisions would not have a Material Adverse Effect on the Buyer or any of the Buyer Subsidiaries;
(ii) no union has been accredited or otherwise designated to wages represent any employees of the Buyer or any of the Buyer Subsidiaries and, to the knowledge of the Buyer, no accreditation request or other representation question is pending with respect to the employees of the Buyer or any of the Buyer Subsidiaries and hours, payment no collective agreement or collective bargaining agreement or modification thereof has expired or is in effect in any of wages, child labor, family and medical leave, access to the Buyer ‘s facilities and employment opportunities none is currently being negotiated by the Buyer or any Buyer Subsidiary; and
(b) the Buyer Public Documents disclose, to the extent required by applicable Securities Laws, each material plan for disabled personsretirement, employment discrimination (including discrimination based upon sexbonus, pregnancystock purchase, marital statusprofit sharing, agestock option, racedeferred compensation, colorseverance or termination pay, national origininsurance, ethnicitymedical, sexual orientationhospital, dental, vision care, drug, sick leave, disability, veteran statussalary continuation, religion legal benefits, unemployment benefits, vacation, incentive or other classification protected otherwise contributed to, or required to be contributed to, by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable the Buyer for the payment benefit of any claims, damages, fines, penalties, or other amounts to any current or former Business Employeesdirector, however designatedofficer, for failure to comply employee or consultant of the Buyer, each of which has been maintained in all material respects with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement its terms and with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated requirements prescribed by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There all statutes, orders, rules and regulations that are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Lawssuch employee plans;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleSchedule 3.19(a) hereto lists all employees of the Business, (b) locationtheir current rates of compensation and most recent pay increase, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation ratebenefits, (e) commissionlocation of employment, bonus or other additional compensation (or the terms thereof, if determined pursuant to whether such employee is a scale or formula), if any, (f) current employee status, including, if on leave, the type of leavesenior management employee, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if anyrelated information requested by Buyer. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) has not increased the rate of compensation payable or to become payable to or for the benefit of any employee of the Business Employeessince December 31, or (ii1997, except as set forth on Schedule 3.19(a) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;hereto.
(b) Schedule 3.19(b) hereto lists and describes all of Seller's present or past Employee Benefit Plans. Each Employee Benefit Plan is and at all times has been delinquent in payments full compliance with all applicable Laws (including ERISA). Seller is not contributing to, and has not contributed to any Business multi-employer plan, as defined in ERISA. Any past Employee Benefit Plan that has been terminated was done so in full compliance with all applicable Laws, and there is no basis for further liability or obligation of Seller pursuant to any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;and all past Employee Benefit Plans.
(c) violated any Laws Seller has no Employee Benefit Plan or other agreements (including collective bargaining agreements), arrangements, or plans which would bind or in any way affect Buyer after the Closing Date, regardless of whether Buyer employs any such employees.
(d) Seller is in material respect compliance with respect to all federal, foreign, state, or other applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeesemployment, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities has not and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but is not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for engaged in any unfair labor practice that would in any way affect Buyer after the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;Closing Date.
(e) materially violated No present or former employee of the Business has any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending claim against Seller (whether under federal, foreign or state Law, under any employee agreement or otherwise), that would in any way affect Buyer after the Closing Date, on account of its Affiliates pertaining to or for (i) overtime pay, other than overtime pay for the Businesscurrent payroll period; (ii) wages or salaries, and neither Seller nor any other than wages or salaries for the current payroll period; or (iii) vacations, time off or pay in lieu of its Affiliates has been cited by any Governmental Entity vacation or time off, other than vacation or time off (including OSHA or any comparable state agencypay in lieu thereof) for violations of applicable occupational health and safety Laws in connection with the Business any time earned in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;past twelve-month period.
(f) implemented any plant closingSchedule 3.19(e) sets forth Seller's unemployment compensation contribution and solvency rates. Seller has made all required payments to its unemployment compensation reserve account with the appropriate governmental department under California law, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party tosuch accounts have positive balances and, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(hon Schedule 3.19(e) and to the Knowledge of the Seller Disclosure ScheduleSeller, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, there are no current or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
former employees (i) experienced any strikereceiving unemployment compensation benefits which are being charged against such account, work slowdown, other material work stoppage, picketing, handbilling(ii) that are eligible for such benefits, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(jiii) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees that are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsclaiming such benefits.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Asset Purchase Agreement (Continental Circuits Corp)
Employment Matters. Section 3.15 (a) Schedule 5.16(a) sets forth a true, complete, and correct list of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information with respect to each current employee and independent contractor of the Company (the “Business Personnel”): (i) name or employee identifier (where permitted by Information Privacy and Security Laws); and (ii) whether such individual is classified as an employee or an independent contractor. For each Business Personnel classified as an employee, the following information is also included in Schedule 5.16(a): (iii) title or position held; (iv) date of hire; (v) total length of employment, including any prior service credit that would affect the calculation of years of service for any purpose; (vi) status as full- or part-time; (vii) work location; (viii) current annual compensation (including base salary, commissions, and deferred compensation); and (ix) accrued but unused vacation and other paid-time off entitlements as of the date hereof with respect to hereof. Except for those individuals classified as independent contractors, each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for Personnel is employed by the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;Company.
(b) been delinquent The Company has not, within the past three (3) years, received any “cease and desist” letter or similar written communication alleging that any current or former employee or independent contractors is or was, and to the Knowledge of the Seller, no Business Personnel is, performing any job duties or engaging in payments to other activities on behalf of the Company that would violate any Business Employee for any wages (including overtime compensation)employment, salariesnon-competition, commissionsnon-solicitation, bonuses non-disclosure, or other direct compensation for similar agreement between such individual and any services performed by them former employer or any amounts required to be reimbursed to such Business Employees;Requirements of Law.
(c) violated any Laws To the Knowledge of the Seller, the Company is, and for the past three (3) years has been, in any compliance in all material respect respects with respect all Requirements of Law relating to employment and employment practices, including the terms and conditions of employment employment, termination of employment, hiring practices and procedures, immigration, workplace health and safety, workers’ compensation, human rights and discrimination, retaliation, harassment, applicable leave Requirements of Law, wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Lawminimum wage and overtime payments), equal employment opportunities and affirmative action, employee privacyworker classification, and fair employment practices. labor matters.
(d) The Business Company has filed and maintained taken commercially reasonable steps to comply in all records and reports pertaining to equal employment opportunities required under material respects with all applicable employment Laws Requirements of Law, including but not limited to EEO-1 reportsall applicable federal, affirmative action plans provincial, territorial, and other similar records;local statutes, regulations, and orders related to employee leave, workplace safety, and employee accommodations, related to, or in response to, COVID-19.
(de) To the Knowledge of Seller, the Company is in compliance with all terms and conditions of employment. The Company has not, in the last three (3) years and currently is not, engaged in any unfair labor practice. All amounts due or accrued due for all salary, wages, bonuses, commissions or other incentive payments, vacation with pay, overtime, sick days and benefits under the Plans have either been liable for paid or are accurately reflected in the payment books and records of the Company. Current and complete copies of all template Employment Contracts and any claimsEmployment Contracts that materially deviate from the templates have been made available to the Buyer.
(f) Except as set forth in Schedule 5.16(f), damagesthere is no Collective Agreement with any labor organization, fines, penaltiesunion, or employee association (each, a “Union”) in respect of employees of the Company. Current and complete copies of all Collective Agreements have been made available to the Buyer. Except as set forth in Schedule 5.16(f), no Collective Agreement is currently being negotiated or is subject to negotiation or renegotiation by the Company or any other amounts Person in respect of employees of the Company. Except in respect of the Collective Agreements, no union or employee bargaining agent holds bargaining rights with respect to any current or former Business Employees, however designated, for failure to comply with any employment Lawsemployees of the Company by way of certification, or is party to any judgment, settlement agreement, consent decree, succession rights or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matterhas applied therefor. There are no formal current or, to the Knowledge of Seller, threatened or informal actionspending attempts to organize or establish any Union with respect to employees of the Company, proceedingsnor has there been any such attempts within the last three (3) years. There is no labor strike, controversiesdispute, grievanceswork slowdown or stoppage pending or involving or, chargesto the Knowledge of the Seller, proceedings or investigations threatened against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, Company and no such event has occurred within the last three (3) years. The Company is not in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited toCollective Agreement. Prior to Closing, the U.S. Occupational Safety Company will comply with all obligations to provide notice of the transactions contemplated hereby to any Union and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees Company’s employees in accordance with applicable Laws;
(f) implemented any plant closingRequirements of Law or the terms of a Collective Agreement. To the Knowledge of the Seller, mass layoff of Business Employees that could require notice (without regard no Person has applied to have the Company declared a common or related employer pursuant to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);Requirement of Law.
(g) been a party toExcept as disclosed in Schedule 5.16(g), or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 no employee of the Labor Management Relations ActCompany has any agreement as to length of notice or termination or severance payment required to terminate his or her employment, 29 U.S.C. § 185other than: (A) pursuant to Requirements of Law; (B) as set out in the template Employment Contracts; or (C) such as results from the employment of an employee without an agreement as to notice, with any labor organization representing any Business Employees;termination or severance.
(h) except Except as set forth disclosed in 3.15(h) Schedule 5.16(h), there are no termination, severance, change of control, retention or other Contracts with current or former employees providing for cash or other compensation, benefits or acceleration of benefits upon the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeesconsummation of, or any effects bargaining agreementrelating to, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description a change of control of the treatment Company.
(i) There are no charges pending under applicable occupational health and safety legislation (“OHSA”). The Company has complied in all material respects with any orders issued under OHSA and there are no appeals of any orders under OHSA currently outstanding.
(j) The Company is in compliance with all terms and conditions of work permits and labor market impact assessment opinion confirmations relating to employees of the pension Company. No audit by any Governmental Body is being conducted, or to the Knowledge of the Seller, pending in respect of any foreign workers of the Company
(k) All material written employee manuals and policies affecting the Company’s employees have been made available by Seller to Buyer.
(l) No current officer, director, manager, or other executive of the Company has been the subject of any complaint of harassment (including sexual and psychological harassment), sexual assault, or sexual discrimination during his, her, or their tenure at the Company. To the Knowledge of the Seller, no other officer, director, manager, or other executive of the Company has been the subject of or, or made any allegation of, any workplace harassment, workplace violence, sexual or psychological harassment, sexual assault, sexual discrimination or other misconduct during his or her tenure at the Company.
(m) There are no pending or anticipated layoffs or terminations of employment in respect of any of the Company’s employees as a result of COVID-19. The Company has promptly and thoroughly investigated all occupational health and safety issues related to COVID-19 relevant to the Business. With respect to each such occupational health and safety issue related to COVID-19, the Company has taken prompt corrective action that is reasonably calculated to prevent the spread of COVID-19 within the workplace. Except as set forth in Schedule 5.16(m), the Company has not applied for any business support measures or government programs (including any supplemental employment plan included in Section 5.5(b)(iii)or wage subsidy program) with any Governmental Body as a result of COVID-19.
Appears in 1 contract
Employment Matters. (a) Sellers have delivered to Buyers an executive summary of each material (i) “employee benefit plan,” as defined in Section 3.15 3(3) of the Seller Disclosure Schedule contains a true ERISA, (ii) each employment agreement or arrangement, (iii) health or medical benefits, (iv) vacation or sick leave benefits, (v) life or disability insurance benefits, or (vi) other material employee benefit plan, program or arrangement, that is maintained, administered or contributed to by Sellers and complete listing of the names of all Business Employees, together with the following information as of the date hereof that covers any Transferred Employee or with respect to each such employee: which Sellers have any material Liability relating to the Stations (a) job titlecollectively, the “Company Plans”).
(b) locationSubject to Sections 14.2 and 14.6, the employment by Sellers of any Transferred Employee is at-will employment, meaning that such Person may be terminated at any time, without penalty or Liability of any kind (c) date of hire (other than accrued vacation pay, COBRA benefits and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula)benefits required by applicable Law, if any, (fand except for severance payments and other obligations required under an employment agreement with any such Transferred Employee) except as such termination may be restricted by the current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any Law of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time jurisdiction in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who which such Person is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;employed.
(c) violated any Laws in any material respect with With respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Transferred Employees, including any such Laws relating to wages Sellers are and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under have been within the last three years in compliance in all material respects with all applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgmentand, settlement agreementexcept as set forth on Schedule 4.20, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There there are no formal active, pending or, to Sellers’ Knowledge, threatened administrative or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against judicial Proceedings under Title VII of the Seller or any Civil Rights Act of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to1964, the U.S. Age Discrimination in Employment Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health Family and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Medical Leave Act, 29 U.S.C. § 185ERISA, the Americans with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of Disabilities Act, the Seller Disclosure ScheduleWorker Adjustment and Retraining Notification Act, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act or any other foreign, federal, state, county or local Law (including common Law), ordinance or regulation relating to Transferred Employees of Sellers, nor are there any internal company investigations concerning alleged violations of the same, in each case that would result in a Material Adverse Effect.
(d) Except as amendedset forth on Schedule 4.20, 29 U.S.C. § 158. Sellers have timely paid in full or accrued, with respect to all of their Transferred Employees, all wages, salaries, commissions, bonuses, fringe benefit payments and all other direct and indirect compensation of any kind for all services performed by them and each of them to the date hereof.
(e) Except as set forth on Schedule 4.20, there is not presently pending or existing and, to the Knowledge of Sellers, there is not threatened (i) any labor dispute, strike, slowdown, picketing, or work stoppage, or (ii) any substantial effort to organize any Transferred Employees into a new or modified collective bargaining unit, or (iii) any Transferred Employee grievance under any company policy or employment agreement that would result in a Material Adverse Effect.
(f) There are currently is no unfair labor practice charges material dispute, claim, or complaints Proceeding pending with or, to Sellers’ Knowledge, threatened by the U.S. Citizenship and Immigration Services with respect to Sellers.
(g) Neither Sellers nor any Governmental Entity alleging ERISA Affiliate nor any violations predecessor thereof contributes to, or has in the past contributed, with respect to the Stations, to (i) any multiemployer plan, as defined in Section 3(37) of ERISA, (ii) any plan subject to Title IV of ERISA; (iii) an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code; (iv) a multiple employer plan, within the meaning of Section 413(c) of the Code, or (v) any multiple employer welfare arrangement, within the meaning of Section 3(40) of ERISA. “ERISA Affiliate” of any entity means any other entity that, together with such entity, would be treated as a single employer under Section 414 of the Code.
(h) To Sellers’ Knowledge, each of the Company Plans has been established, operated and administered in material compliance with its terms and applicable Law, including but not limited to ERISA and the Code, and no non-exempt prohibited transaction, within the meaning of Section 4975 of the Code or Section 406 of ERISA, has occurred. To Sellers’ Knowledge, no event has occurred and no condition exists that would subject any of the Assets being sold to any Tax, fine, Lien, penalty or other Liability (other than Liabilities incurred in the ordinary course of the plan’s operations that are reflected in the Financial Statements). Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the “IRS”) that it is so qualified or is permitted to rely on the opinion letter of a prototype plan or volume submitter sponsor, and to Sellers’ Knowledge, nothing has occurred since the date of such letter that is reasonably likely to affect the qualified status of such Company Plan.
(i) With respect to Transferred Employees, Sellers have provided Buyers: each such employee’s position; the location at which employed; current compensation rate; and whether such employee participates in the Sellers’ 401(k) Plan and health Plan.
(j) To Sellers’ Knowledge, there are no Transferred Employees who are not in lawful status pursuant to the immigration laws of the United States.
(k) Except as set forth on Schedule 4.20, Sellers do not provide continuation of any benefit to Transferred Employees after termination of employment other than as required under Section 4980B of the Code, or similar provision of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsstate Law.
(l) Section 3.15(l) To Sellers’ Knowledge, no default, violation, error or omission has occurred on or prior to the Closing Date with respect to any of the Seller Disclosure Schedule contains Company Plans for which Buyers could be liable as a complete and accurate description result of the substance consummation of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement. No Company Plan has terms requiring assumption by Buyers. No assets of any Seller are subject to any Lien under any provision of ERISA or the Code.
(m) Except as set forth in Schedule 4.20, and except for stay bonuses and other obligations that will be satisfied by Sellers, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any material payment (including, without limitation, severance pay or unemployment compensation) becoming due to any director or employee of any Seller; (ii) result in the acceleration of vesting under any Company Plan; or (iii) materially increase any benefits otherwise payable under any Company Plan; and any such payment or increase in benefits is fully deductible under the Code, including but not limited to Sections 162, 280G and 404. Except as set forth in Schedule 4.20, and except for stay bonuses and other obligations that will be satisfied by Sellers, neither Sellers nor any ERISA Affiliate has announced any plan or commitment to create any additional Company Plan or to amend or modify any Company Plan.
(n) None of Sellers are, nor has any Seller been in the description past five years, a party to, bound by, or negotiating any collective bargaining agreement or other contract or agreement with a union, works council or labor organization with respect to any Station Employees (collectively, “Union”), and there is not, and has not been for the past five years, any Union representing or purporting to represent any Station Employees, and no Union or group of Sellers’ employees is seeking or has sought to organize Station Employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting any Seller with respect to the Stations or any of the treatment Station Employees. No Seller has any duty to bargain with any Union with respect to the Stations.
(o) To Sellers’ Knowledge, and except as otherwise set forth in one or more Schedules for this Section, no event has occurred, and no condition exists, as of, or prior to the Closing Date, with respect to any Company Plan for or with respect to which Buyers could incur any liability, tax, penalty or assessment, regardless of whether any such event or condition is known or unknown, contingent or otherwise, including without limitation, as a result of any matter that could adversely affect the pension plan included in Section 5.5(b)(iiitax-qualified status of a Company Plan (or the tax-exempt status of a related trust), as a result of any act or omission of any fiduciary, actuary or administrator of any Company Plan, or as a result of any claim by a participant or beneficiary.
Appears in 1 contract
Samples: Asset Purchase Agreement (Emmis Communications Corp)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, With respect to all employees of the Parent Entities (b) location, (c) date of hire (and service start date if all such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or individuals the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: “Parent Employees”): (i) increased to the compensation payable or to become payable to or for the benefit of any Knowledge of the Business EmployeesParent, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time Parent Entities are in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any compliance with all applicable Laws pertaining to immigration respecting labor and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours hours, immigration, occupational safety and health, workers’ compensation; (ii) the Parent Entities are in compliance with all applicable Laws respecting the characterization and treatment of individuals as employees, independent contractors or consultants; (iii) all Parent Employees classified as exempt under the Fair Labor Standards Act and/or ineligible for overtime under federal, state, and local wage and hour Laws (including employment and labor standards Laws) are properly classified; and (iv) the Parent Entities are in compliance with and have complied in all material respects with all immigration Laws, including Form I-9 requirements and any applicable mandatory E-Verify obligations, except, in the case of each of clauses (i) through (iv) for any such non-compliance or violation as would not have or not reasonably be expected to have a Parent Material Adverse Effect. The Parent Entities are and have been in compliance with the terms of all employment agreements or other employment-related contracts, except as would not have or not reasonably be expected to have a Parent Material Adverse Effect.
(b) As of the date hereof, there are no Actions against any of the Parent Entities pending, or to the Knowledge of the Parent, threatened to be brought or filed, by or with any Governmental Authority or arbitral tribunal in connection with the employment or termination of employment of any Business Employeescurrent or former employee, including applicant, consultant, volunteer, intern, or independent contractor of the Parent Entities, including, without limitation, any such Laws charge, investigation or claim relating to wages and unfair labor practices, grievances under any applicable collective bargaining agreement, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, human rights, pay equity, accessibility, language, immigration, wages, hours, payment of wagesovertime compensation, employment or labor standards, employee classification, child labor, family hiring, promotion and medical termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence, paid sick leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion unemployment insurance or any other classification protected by law or retaliation for exercise of rights employment-related matter arising under applicable Law)Laws, equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designatedexcept, for failure any such Actions as would not have or not reasonably be expected to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqhave a Parent Material Adverse Effect., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Business Combination Agreement (HollyFrontier Corp)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is a party to any judgment, settlement agreement, consent decree, collective bargaining or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure ScheduleEmployees. In the past three (3) years, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employeesthere has not been, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending ornor, to Seller’s Knowledge, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting Seller or any of the Employees.
(b) Seller is, and has since August 7, 2012 been, in compliance in all material respects with all applicable Laws pertaining to employment and employment practices to the extent they relate to the Employees, including with respect to wage and hour Laws and the classification of workers as independent contractors.
(i) Seller is not delinquent in any required payments to any of the Employees; (ii) there are no, and within the last three (3) years there have been no, formal grievances, complaints or charges with respect to employment or labor matters (including claims of employment discrimination, retaliation or unfair labor practices) pending or threatened in writing against Seller in connection with the Business; (iii) none of the employment policies or practices of Seller are currently being audited or investigated or, to the Knowledge of Seller, subject to imminent audit or investigation by any Governmental Authority; (iv) Seller and all of its officers and senior managers are not, and within the last three (3) years have not been, subject to any order, decree, injunction or judgment by any Governmental Authority, arbitrator or private settlement contract in respect of any labor or employment matters of the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(ld) Section 3.15(l4.15(e) of the Seller Disclosure Schedule Schedules contains a complete and accurate description list of all Employees as of the substance date of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including setting forth for each Employee: his or her position or title; whether classified as exempt or non-exempt for wage and hour purposes; whether paid on a salary, hourly or commission basis and the description employee’s actual annual base salary or other rates of compensation; and business location. Schedule 4.15(e) also contains a list of any independent contractors, temporary employees, leased employees or any other servants or agents compensated other than through reportable wages paid by Seller and reported on a Form W-2. To Seller’s Knowledge, no key Employee of the treatment of Business intends to terminate his or her employment with the pension plan included Seller.
(e) The representations and warranties set forth in this Section 5.5(b)(iii)4.15 are Seller’s sole and exclusive representations and warranties regarding employment matters.
Appears in 1 contract
Samples: Asset Purchase Agreement (Higher One Holdings, Inc.)
Employment Matters. Section 3.15 of the Seller Disclosure (a) Schedule contains 1.1(b) sets forth a true and complete listing of the names list of all Business Employees, together with employees on the following information Agreed List of Employees as of the date hereof with respect to hereof, and includes each such employee: (a) job ’s name, title, (b) level within The X.X. Xxxxxxx Company, work location, status (c) e.g., full- or part-time or temporary), overtime classification (e.g., exempt or non-exempt), date of hire (and service start date if such date is different from date commencement of hire)employment, (d) rate of base compensation ratesalary or hourly wage, (e) commission, target annual bonus opportunity or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leavecash incentive opportunity, the type of leave, and (g) hours amount of accrued vacation, sick days, personal days, float days and any other but unused paid time off, and whether the employee is on leave (and if any. Since June 30so, 2012the category of leave, except in the ordinary course date on which such leave commenced and the date of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or expected return to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;work).
(b) been delinquent in payments Schedule 3.15(b) sets forth a true and complete list of all consultants currently providing services to any the Business Employee for any wages (including overtime compensation“Consultants”), salaries, commissions, bonuses or other direct compensation for any . Seller has made available to Buyer true and complete copies of each services performed by them or any amounts required to be reimbursed to such Business Employees;agreement with each Consultant.
(c) violated any Laws in any material respect with With respect to employment current and employment practicesformer employees and individual independent contractors of Seller engaged in the Business (including employees on the Agreed List of Employees), Seller is and has been in compliance with all applicable Laws respecting employment, including discrimination or harassment in employment, terms and conditions of employment and wages and hours in connection with the employment employment, termination of any Business Employeesemployment, including any such Laws relating to wages and wages, overtime classification, hours, payment of wagesoccupational safety and health, child laboremployee whistle- blowing, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative actionimmigration, employee privacy, employment practices and fair employment practices. The classification of employees, consultants and independent contractors and no current or former employee or independent contractor of Seller engaged in the Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment notified Seller of any claimscomplaint with respect to the foregoing or any other matters. Except as set forth on Schedule 3.15(c), damagesthere is, finesand since January 1, penalties2019, there has been, no unfair labor practice charge, wage and hour investigation, employment discrimination charge, or other amounts to any current complaint against or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the affecting Seller or any in respect of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including before the National Labor Relations Board) for violations of applicable , the Equal Employment Opportunity Commission, or any comparable governmental body including any state labor Laws in connection with the Business relations board or equal opportunity agency or any time in the last three yearscourt or tribunal, nor has any written complaint pertaining to any such charge or complaint or potential charge or complaint been filed against Seller.
(ld) Section 3.15(l) Except as set forth on Schedule 3.15(d), neither the execution and delivery of this Agreement nor the Seller Disclosure Schedule contains a complete and accurate description consummation of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including hereby will (alone or in combination with any other event) (i) give rise to any payments or benefits that would be nondeductible to the description Sellers under Section 280G of the treatment Code or that could result in an excise Tax on any recipient under Section 4999 of the pension plan included Code, (ii) result in Section 5.5(b)(iii)any payment or benefit becoming due (for severance, termination pay or otherwise) to any employees on the Agreed List of Employees or to any Consultant or satisfy any prerequisite to any payment or benefit to any such employee, (iii) increase any benefits or give rise to any liability to any such employee under any Seller Benefit Plan or otherwise, (iv) result in the acceleration of the time of payment, vesting or funding of any such benefits under any Seller Benefit Plan or otherwise, or (v) increase the amount of compensation or benefits due to any such employee on the Agreed List of Employees or to any Consultant or his or her beneficiaries.
(e) With respect to employees on the Agreed List of Employees, Seller has withheld all amounts required by Law to be withheld from the wages, salaries, and other payments to such employees, and is not liable for any arrears of wages or any Taxes or any penalty for failure to comply with any of the foregoing. There are no pending claims against Seller for workers’ compensation, or short- or long-term disability, relating to employees of Seller who are employed in the Business. To the Seller’s Knowledge, Seller has withheld all amounts required by Law to be withheld from compensation or other payments made to the Consultants.
(f) Seller has not received written notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, occupational health and safety or workplace safety and insurance/workers compensation Laws to conduct an investigation of Seller relating to the Business and, to the Knowledge of Seller, no such investigation is in progress. There are no (and have not been during the two (2) year period preceding the date hereof) strikes or lockouts with respect to any employees of Seller engaged in the Business. There is no unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the Knowledge of Seller, threatened in writing against Seller with respect to any current or former employees or individual independent contractors engaged in the Business. There is no slowdown or work stoppage in effect or, to the Knowledge of Seller, threatened in writing with respect to any employees or individual independent contractors engaged in the Business. Seller is not a party to any collective bargaining agreement or any other type of collective agreement with respect to any employees engaged in the Business. To the Knowledge of Seller, no union or other workers’ representative is currently engaged in any organizational activities or requests or elections for representation with respect to employees of Seller engaged in the Business.
(g) Each individual who performs services for the Business and who is not treated by Seller as an employee under applicable Laws (including for Tax withholding purposes) is not an employee under applicable Laws (including for Tax withholding purposes) or for purposes of any Seller Benefit Plan.
Appears in 1 contract
Employment Matters. (a) Section 3.15 5.19(a) of the Seller Disclosure Schedule contains sets forth a true and complete listing list of each employee of each Company (including any employee who is on a leave of absence or on layoff status) and each individual engaged by each Company as an independent contractor, containing the following information: (i) the name of each employee or independent contractor; (ii) the aggregate dollar amounts of the names compensation (including wages, salary, commissions, director’s fees, fringe benefits, bonuses, profit sharing payments, and other payments or benefits of all Business Employeesany type) received by each employee or independent contractor from such Company with respect to services performed in calendar year 2021 and year to date 2022; (iii) each employee’s or independent contractor’s current annualized compensation, together with hourly wage rate or remuneration, as applicable; (iv) the following information number of hours of sick‑time that each employee has accrued as of the date hereof with respect to of this Agreement and the aggregate dollar amount thereof; (v) the number of hours of vacation time or paid time off that each such employee: employee has accrued and the aggregate dollar amount thereof; (avi) job titlethe start date of employment or engagement; and (vii) status of each employee as full‑time or part‑time and exempt or non‑exempt, (viii) whether the employee is receiving workers compensation or disability payments or is on leave or layoff status and, if so, the anticipated date of return.
(b) locationEach Company is, and for the past three (3) years has been, in compliance, in all material respects, with all applicable Laws regarding labor and employment, including but not limited to the National Labor Relations Act, the Family and Medical Leave Act, employment discrimination laws, wage and hour laws, employment standards legislation, wage payment laws and occupational health and safety (including but not limited to any such obligations it may have under applicable Laws or any Contract to any employees providing services to any Company through a third party). Each Company has (i) timely paid in full to all Company employees all wages and other compensation (including overtime compensation and compensation for meal periods and rest breaks) as required by all applicable Laws, in all material respects, (ii) timely paid in full to all Company employees all reimbursement of expenses as required by all applicable Laws, in all material respects, and (iii) properly reported to all Company employees (by pay stub, wage statement, or otherwise) their wages in accordance with all applicable Laws, in all material respects.
(c) date Each Company is, and for the past three (3) years has been, in material compliance with all applicable Laws respecting proper classification of hire service providers as exempt employees, non‑exempt employees, independent contractors, or leased employees, and in the past three (and service start date if such date is different 3) years, no Company has received written (or to the Knowledge of Sellers, verbal or otherwise) notice to the contrary from date of hire), any Person or Governmental Entity.
(d) base compensation rateThe employment of each Company employee is terminable by such Company at will and without prior notice, and no employee is entitled to severance pay or other benefits following termination or resignation, except as otherwise required by Law or any Benefit Plan set forth or required to be set forth on Section 5.18(a) of the Disclosure Schedule. Sellers have made available to Purchaser accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of the current and former employees of each Company.
(e) commissionThere has not been pending or existing during the 3‑year period preceding the date of this Agreement any strike, bonus slowdown, work stoppage, picketing or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, lockout involving any Company.
(f) current employee statusAs of the date of this Agreement, includingto the Knowledge of Sellers, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and there is no unfair labor practice charge or complaint against any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: Company pending before (i) increased the compensation payable or to become payable to or for the benefit of any of the Business EmployeesNational Labor Relations Board, or (ii) increasedsimilar Governmental Entity outside of the United States, augmented and to the Knowledge of Sellers, no such charge or improved benefits granted to or for complaint has been made against such Company during the benefit 3‑year period preceding the date of this Agreement.
(g) To the Knowledge of Sellers, no Seller, executive officer of any Company, or salaried employee of the Business Employees under any Company of a seniority level that reports directly to any Seller Benefit Plan. At or any time in such executive officer: (i) intends to terminate his or her relationship with such Company, or (ii) has received an offer to join a business that may be competitive with the business of such Company.
(h) No Company is now, nor has it ever been, a party to any collective‑bargaining agreement, neutrality agreement, or other Contract of any kind with a labor union or labor organization, or party to any representation proceeding before the National Labor Relations Board, or subject to any duty to bargain with any labor union or labor organization, and there has not been within the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who and is not legally eligible for employment under applicable immigration Lawsnow, violated any applicable Laws pertaining labor union organizing activity pending or, to immigration and work authorizationthe Knowledge of Sellers, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect threatened with respect to employment and employment practicesany Company.
(i) To the Knowledge of Sellers, terms and conditions except as set forth on Section 5.19 of employment and wages and hours the Disclosure Schedules, there has been no complaint or charge of discrimination or harassment (including sexual harassment) made, filed or threatened against any Company or employee (in connection such employee’s capacity as an employee of any Company) with the employment Equal Employment Opportunity Commission or similar Governmental Entity during the last three years prior to the date of this Agreement.
(j) No Company has experienced a “plant closing,” “business closing,” or “mass layoff” or similar event triggering a duty to provide notice pursuant to the federal Worker Adjustment and Retraining Notification Act (“WARN Act”) or any similar state or local Law or given notice of any Business Employeesredundancies to the Secretary of State or started consultations with any appropriate representatives under the provisions of Part IV of the Trade Union and Labour (Consolidation) Act 1992, including nor has any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure Company failed to comply with any obligation under that statute. During the 90‑day period preceding the date of this Agreement, no employee has suffered an “employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, loss” as defined in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity local Laws with respect to any Business Employees; orCompany.
(k) committed any violation Each Company is in any compliance in all material respect respects with the requirements of any labor all applicable Laws of any jurisdiction where the Business Employees are employedregarding immigration, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining but not limited to the Business or any Business Employeesrequirements under the federal Immigration Reform and Control Act of 1986 regarding verification of employment eligibility, documentation fraud, document retention, non‑discrimination, and Seller and its Affiliates have the prohibition against knowing employment of workers who are not been subject authorized to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time work in the last United States. Each Company has on file a valid and current I‑9 form for (i) all current employees hired since November 6, 1986, and (ii) all former employees whose employment commenced less than three years.
(l) Section 3.15(l) years prior to the date of this Agreement or terminated less than one year prior to the Seller Disclosure Schedule contains a complete and accurate description date of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleEach ALLTEL Entity and Affiliate thereof (A) is in compliance in all material respects with all applicable foreign, (b) locationfederal, (c) date of hire (state and service start date if such date is different from date of hire)local Laws respecting employment, (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours with respect to employees employed in connection with operating the ALLTEL System or former employees during their employment in operating the ALLTEL System; (B) has provided for the withholding of all amounts required by Law or by agreement to be withheld from the wages, salaries and other payments to such employees; (C) is not liable for any Business Employees, including any such Laws relating to wages and hours, payment arrears of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination any other compensation or benefits (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion vacation or other classification protected by law severance pay) or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining any taxes related to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of ALLTEL System or any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, penalty for failure to comply with any employment Laws, or of the foregoing; and (D) is party not liable for any payment to any judgment, settlement agreement, consent decree, trust or other agreement with fund or to any Governmental Entity requiring continuing compliance Authority, with respect to unemployment compensation benefits, social security or reporting other benefits or obligations entered into for such employees (other than routine payments to resolve any labor or employment matterbe made in the normal course of business and consistent with past practice). There Except as set forth on Schedule 3.15(a), to ALLTEL’s Knowledge, there are no formal or informal actions, proceedings, controversies, grievancespending claims, charges, proceedings actions, investigations or investigations lawsuits filed against the Seller an ALLTEL Entity or ALLTEL Newco with any court or any Governmental Authority involving the employment of its Affiliates or termination of any current or former employees pertaining to their involvement in the operation of the ALLTEL System. Except as set forth on Schedule 3.15(a), to ALLTEL’s Knowledge: (i) there are no such claims, charges, actions, investigations or lawsuits threatened, and (ii) no facts exist which could give rise to liability to any Business Employees current or former employees involved in the operation of the ALLTEL System.
(b) For each employee directly employed in operating the ALLTEL System, Schedule 3.15(b) sets forth as of the date hereof the name, position, market location, date of hire, current annual salary, hourly rate of pay, commission and/or bonus arrangement (as applicable), service credited for purposes of vesting and eligibility under any ALLTEL System Employee Plan, the current status of the employee as either active or on leave and if on leave, the type of leave, and the amount of the last salary or rate of pay increase and the date thereof of all active employees and all inactive employees on leave or other inactive status, in each case employed by an ALLTEL Entity, ALLTEL Newco or any Affiliate thereof in the operation of the ALLTEL System. None of the ALLTEL Entities, ALLTEL Newco or any Affiliate thereof is a party to, nor is bound by, any contracts or employment agreements with respect to employees or officers engaged, to any extent, in the operation of the ALLTEL System.
(c) To ALLTEL’s Knowledge: (i) any individual engaged by an ALLTEL Entity, ALLTEL Newco or an Affiliate thereof as an independent contractor in connection with the ALLTEL System has been accurately classified as an independent contractor for all purposes, including payroll tax, withholding, unemployment insurance and benefits, and (ii) none of the ALLTEL Entities, ALLTEL Newco or any Affiliate thereof has received notice of any pending or to Seller’s Knowledge threatened to be brought or filed by or with inquiry from any Governmental Entity or arbitrator based on, arising out of, in connection withAuthority concerning such independent contractor status, or otherwise relating any pending or threatened claim by any party that any such independent contractor be reclassified as an employee for any purpose.
(d) On or prior to alleged violation the Closing Date, ALLTEL shall provide USCC a list of any the former employees who performed services for the ALLTEL System at a location in the ALLTEL Service Area and have terminated employment Laws;due to lay-off or position elimination during the 90 calendar day period preceding the Closing Date with their position and work location at time of termination, except for terminations of employment pursuant to Section 6.01(a), and a list of the total number of employees employed at each work location in the ALLTEL Service Area as of the Closing Date.
(e) materially violated any Laws regulating occupational safety and health includingThere are no employment, but not limited toseverance or similar agreements which are binding on USCC or an Affiliate thereof, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., including ALLTEL Newco after Closing (as a successor employer or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”otherwise) or comparable state agencies). There are currently no citations which will create any obligation whatsoever after the Closing on the part of USCC or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)an Affiliate thereof, including OSHA-300 injury logs. FurtherALLTEL Newco after Closing, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act employee, manager, agent, contractor or officer of any ALLTEL Entity, ALLTEL Newco or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsAffiliate thereof.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Section 3.15 3.21(a) of the Seller Disclosure Schedule contains a true true, correct and complete listing list of the names of all Business Employees, together with the following information Persons who are employees or independent contractors of either Seller as of the date hereof with respect to each such employeehereof, specifying: (ai) job titlethe name, (b) location, (c) title and date of hire (or engagement) of such individual; and service start date if such date is different from date (ii) the rate of hirehourly pay (or, for salaried employees, base salary), target bonus, and commission (d) base compensation rateor, (e) commissionfor independent contractors, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formulafees), if anypayable to such individual, (f) current whether such employee statusis classified as exempt or nonexempt under the Fair Labor Standards Act, includingwork location, if on leavevacation entitlement formula, the type of leave, and (g) hours amount of accrued but unused vacation, sick daysleave, personal days, float days and any or other paid time paid-time-off, amount of accrued but unpaid bonus, whether or not any such employee is on leave of absence (and if any. Since June 30so the reason for absence and the expected date of return to work), 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable and immigration or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;visa status.
(b) Each Seller is and has been delinquent for the last three (3) years in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any compliance in all material respects with all applicable Laws in any material respect with respect to respecting employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeeshours, including any such Laws relating to wages laws respecting minimum wage and hoursovertime payments, payment of wagesemployment discrimination, child laborworkers’ compensation, family and medical leave, access immigration, occupational safety and health requirements, withholding, and classification of employees and independent contractors.
(c) Each Seller has paid in full to facilities all employees, independent contractors and employment opportunities consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. Neither Seller has undertaken any reductions-in-force in the past three hundred sixty five (365) days. Neither Seller is, nor has either Seller ever, engaged in any unfair labor practice. Neither Seller is liable for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion any payment to any trust or other classification protected by law fund or retaliation to any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for exercise employees (other than routine payments to be made in the Ordinary Course of rights under applicable LawBusiness), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;.
(d) been liable for Neither Seller has received any written notice, nor to the payment Knowledge of Sellers, any other type of notice, that such Seller may be in violation of any claims, damages, fines, penalties, applicable Laws pertaining to immigration control or other amounts to that any current or former Business Employees, however designated, for failure employee of either Seller is or was not legally authorized to comply with any employment Laws, be employed in the United States or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;was using an invalid social security number.
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, No dispute or Proceeding relating to or involving the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq.employees or independent contractors of either Seller is pending, or applicable regulations promulgated to the Knowledge of Sellers, threatened by any Governmental Entity Person (including the Occupational Health and Safety Administration any Governmental Authority), with respect to either Seller (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings whether under applicable occupational safety and health Laws Law, Contract or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHAotherwise), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;.
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been Neither Seller is a party to, or bound by, or has ever been a party to or bound by, any Collective Bargaining Agreement, effects collective bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any a labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) employee of the Seller Disclosure Scheduleeither Seller, been involved in negotiations with nor are any activities or Proceedings of any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute union pending or, to Seller’s Knowledgethe Knowledge of Sellers, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158threatened. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining has not been, nor, to the Business Knowledge of Sellers, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable other similar labor Laws in connection with the Business any time in the last three yearsactivity or dispute affecting either Seller.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 9.1.12.1. None of the Seller Disclosure Schedule contains Seller's employees are covered by a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus collective bargaining agreement or other additional compensation (or the terms thereof, if determined pursuant to are represented by a scale or formula), if any, (f) current employee status, including, if on leave, the type of leavelabor organization, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or no petition for the benefit of representation concerning any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates 's employees has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection filed with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations ; the Seller is not aware of any union organizational activity and has no reason to believe that any such activity is being contemplated. The Seller has not engaged in any unfair labor practice.
9.1.12.2. Seller is not in violation of applicable labor equal employment opportunity wage and hour or any other Laws of any Government orGovernmental Agency relating to employment; there are no active, pending, or threatened administrative or judicial proceedings under any Laws of any Government or Governmental Agency; there are no claims, charges, and employment related suits or controversies which have occurred within the last 10 years orare presently pending or threatened under any employment related Laws of any Government or Governmental Agency; and the Seller is not subject to any judgments, decrees, conciliation agreements and settlement agreements concerning employment related matters.
9.1.12.3. The Seller has not entered into any employment agreements with any of its employees, and all employees may be terminated at will; there is no contractual obligation or special termination or severance arrangement in respect of any of Seller's employees; and there is no provision of any agreement or arrangement with any of the Seller's employees, or any other legal or contractual requirement, which would obligate the Seller to require the Purchaser of the Assets to employ any of the Seller's employees.
9.1.12.4. The Seller has paid all wages or amounts that have been listed within this agreement, bonuses, commissions and other benefits and sums due (and all required taxes, insurance, social security and withholding thereon). All accrued vacation, accrued sick leave, accrued benefits and accrued payments (and pro rata accruals for a portion of a year) to its employees.
9.1.12.5. The Seller has maintained in effect all insurance policies and other employee benefits covering any employee claims incurred through the Closing Date and will assign, transfer and deliver contracts to the Purchaser.
9.1.12.6. The Purchaser is under no obligation or duty, whether under any contract, agreement, understanding or arrangement or under any applicable Law of any Government or Governmental Agency to assume or be responsible for any obligation, duty or liability, now existing or hereafter arising, relating to or in connection with the Business Seller's employees or any time compensation, benefits or benefit plans in the last three years.
(l) Section 3.15(l) respect of the Seller Disclosure Schedule contains a complete and accurate description Seller's employees, or otherwise arising out of the substance of the oral notification provided by Seller to represented Business Employees on or in connection with the transactions contemplated by this Agreement, including and the description Seller has made no commitment and is under no obligation to cause the Purchaser of the treatment of the pension plan included in Section 5.5(b)(iii)Assets to assume or to be responsible for any such obligation, duty or liability.
Appears in 1 contract
Samples: Assets Purchase Agreement (Acadia National Health Systems Inc)
Employment Matters. (a) Section 3.15 5.18(a) of the Seller Sellers Disclosure Schedule contains sets forth a true and complete listing list of each employee of the names Company (including any employee who is on a leave of all Business Employeesabsence or on layoff status) and each individual engaged by the Company as an independent contractor, together with containing the following information information: (i) to the extent permitted by Law, the name, title or classification of each employee or independent contractor; (ii) to the extent permitted by Law, the aggregate dollar amounts of the compensation (including wages, salary, commissions, director’s fees, fringe benefits, bonuses, profit sharing payments, and other payments or benefits of any type) received by each employee or independent contractor from the Company with respect to services performed in calendar year 2018 and year to date 2019; (iii) to the extent permitted by Law, each employee’s or independent contractor’s current annualized compensation, hourly wage rate or remuneration, as applicable; (iv) the number of hours of sick-time that each employee has accrued as of the date hereof with respect to of this Agreement and the aggregate dollar amount thereof; (v) the number of hours of vacation time or paid time off that each such employee: employee has accrued and the aggregate dollar amount thereof; (avi) job titlethe length of employment; (vii) status of each employee as full-time or part-time and exempt or non-exempt, and (viii) whether the employee is receiving workers compensation or disability payments or is on leave or layoff status and, if so, the anticipated date of return.
(b) locationThe Company has at all times complied, in all material respects, with all applicable Laws regarding labor and employment, including but not limited to the National Labor Relations Act, employment discrimination laws, wage and hour laws and wage payment laws and occupational health and safety (including but not limited to any such obligations it may have under applicable Laws or any Contract to any employees providing services to the Company through a third party). The Company has (i) timely paid in full to all Company employees all wages and other compensation (including overtime compensation and compensation for meal periods and rest breaks) as required by all applicable Laws, in all material respects, (ii) timely paid in full to all Company employees all reimbursement of expenses as required by all applicable Laws, in all material respects, and (iii) properly reported to all Company employees (by pay stub, wage statement, or otherwise) their wages in accordance with all applicable Laws, in all material respects.
(c) date All individuals who perform services for the Company have been classified correctly, including in accordance with the terms of hire each Benefit Plan and ERISA, the Code, the Fair Labor Standards Act, and all other applicable Laws, as exempt employees, non-exempt employees, independent contractors, or leased employees, and the Company has not received written (and service start date if such date is different or to the Knowledge of Sellers, verbal or otherwise) notice to the contrary from date of hire), any Person or Governmental Entity.
(d) base compensation rateThe employment of each Company employee is terminable by the Company at will and no employee is entitled to severance pay or other benefits following termination or resignation, except as otherwise required by Law or any Benefit Plan set forth or required to be set forth on Section 5.17(a) of Sellers Disclosure Schedule. Sellers have made available to Purchaser accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of the current and former employees of the Company.
(e) commissionThere has not been pending or existing during the 3-year period preceding the date of this Agreement any strike, bonus slowdown, work stoppage or other additional compensation (or lockout involving the terms thereof, if determined pursuant to a scale or formula), if any, Company.
(f) current employee statusAs of the date of this Agreement, includingto the Knowledge of Sellers, if on leave, there is no unfair labor practice charge or complaint against the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: Company pending before (i) increased the compensation payable or to become payable to or for the benefit of any of the Business EmployeesNational Labor Relations Board, or (ii) increasedsimilar Governmental Entity outside of the United States, augmented and to the Knowledge of Sellers, no such charge or improved benefits granted complaint has been made against the Company during the 3-year period preceding the date of this Agreement.
(g) To the Knowledge of Sellers, no Seller, executive officer of the Company, or salaried Employee of the Company of a seniority level that reports directly to any Seller or for any such executive officer: (i) intends to terminate his or her relationship with the benefit Company, or (ii) has received an offer to join a business that may be competitive with the business of the Company.
(h) The Company is not now, nor has it ever been, a party to any collective-bargaining agreement, neutrality agreement, or other Contract of any of kind with a labor union or labor organization, or party to any representation proceeding before the Business Employees under National Labor Relations Board, or subject to any Seller Benefit Plan. At duty to bargain with any time in labor union or labor organization, and there has not been within the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who and is not legally eligible for employment under applicable immigration Lawsnow any labor union organizing activity pending or, violated any applicable Laws pertaining to immigration and work authorizationthe Knowledge of Sellers, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect threatened with respect to the Company.
(i) To the Knowledge of Sellers, (i) there has been no complaint or charge of discrimination or harassment (including sexual harassment) made, filed or threatened against the Company or Employee (in such Employee’s capacity as an employee of the Company) with the Equal Employment Opportunity Commission or similar Governmental Entity during the last three years prior to the date of this Agreement; and (ii) no reasonable basis in fact or circumstances exists for the assertion of any such claim described in clause (i).
(j) The Company has not experienced a group employment and employment practices, terms and conditions loss under any applicable Law affecting any site of employment and wages and hours of the Company or one or more facilities or operating units within any site of employment or facility of the Company.
(k) The Company is in connection compliance in all material respects with the employment requirements of any Business Employeesall applicable Laws regarding immigration, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reportsthe requirements under the federal Immigration Reform and Control Act of 1986 regarding verification of employment eligibility, affirmative action plans and other similar records;
(d) been liable for the payment of any claimsdocumentation fraud, damagesdocument retention, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Businessnon-discrimination, and neither Seller nor any the prohibition against knowing employment of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time workers who are not authorized to work in the last five yearsUnited States. Seller The Company has on file a valid and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage current I-9 form for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strikeall current employees hired since November 6, work slowdown1986, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
and (jii) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining all former employees whose employment commenced less than three years prior to the Business date of this Agreement or any Business Employees, and Seller and its Affiliates have not been subject terminated less than one year prior to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations date of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Share Purchase Agreement (Wireless Telecom Group Inc)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, The Company and each of the Subsidiaries is in all material respects in compliance with all applicable laws and regulations respecting employment and employment practices;
(b) locationeach material plan for retirement, bonus, stock purchase, profit sharing, stock option, deferred compensation, severance or termination pay, insurance, medical, hospital, dental, vision care, drug, sick leave, disability, salary continuation, legal benefits, unemployment benefits, vacation, incentive or otherwise contributed to or required to be contributed to, by the Company or any of the Subsidiaries for the benefit of any current or former director, officer, employee or consultant (the “Employee Plans”) has been maintained in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations that are applicable to such Employee Plan. The Company does not and has not had any pension plan (as that term is defined in the Pension Benefits Act (Ontario));
(c) date all material accruals for unpaid vacation pay, premiums for unemployment insurance, health premiums, federal or provincial pension plan premiums, accrued wages, salaries and commissions and Employee Plan payments have been reflected in the books and records of hire (the Company and service start date if such date is different from date of hire), the Subsidiaries;
(d) base compensation ratethere has not been and there is not to the knowledge of the Company, after due inquiry, currently any labour trouble which is adversely effecting or could adversely effect, in a material manner, the carrying on of the business of the Company and the Subsidiaries; and
(e) commissionexcept as disclosed in the Company’s Information Record and to the best of the Company’s knowledge, bonus information and belief, after due inquiry, neither the Company nor any of the Subsidiaries owes any monies to, nor has the Company or other additional any of the Subsidiaries any present loans to, or borrowed any monies from or is otherwise indebted to, any officer, director, employee, shareholder or any person not dealing at “arm’s length” (as such term is defined in the Tax Act) with any of them except for usual employee reimbursements and compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary and normal course of its business. To the best of the Company’s knowledge information and belief, after due inquiry, except usual employee or consulting arrangements made in the ordinary and normal course of business, neither Seller the Company nor any of its Affiliates has: (i) increased the compensation payable Subsidiaries is a party to any contract, agreement or to become payable to understanding with any officer, director, employee, shareholder or for any other person not dealing at arm’s length with it. To the benefit best of the Company’s knowledge, information and belief, after due inquiry, no officer, director or employee of the Company or any of the Business EmployeesSubsidiaries and no entity which is an affiliate or associate of one or more of the foregoing, owns, directly or indirectly, any interest in (except for shares representing less than 5% of the outstanding shares of any class or series of any publicly traded company), or (ii) increasedis an officer, augmented director, employee or improved benefits granted consultant of, any person which is, or is engaged in, a business competitive with the Company which could materially adversely impact on the ability to duly and properly perform its services. To the knowledge of the Company, after due inquiry, no officer, director, employee or for security holder of the benefit of Company or any of the Business Employees under Subsidiaries has any Seller Benefit Plan. At cause of action or other claim whatsoever against, or owes any time in amount to, the last three years, neither the Seller nor Company or any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours the Subsidiaries in connection with its business except for claims in the employment ordinary and normal course of any Business Employees, including any the business such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities as for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, accrued vacation pay or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to matters which would not be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining material to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsCompany.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleEach USCC Entity (A) is in compliance in all material respects with all applicable foreign, (b) locationfederal, (c) date of hire (state and service start date if such date is different from date of hire)local Laws respecting employment, (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours with respect to employees employed in connection with operating the employment of USCC Systems or former employees employed in operating the USCC Systems; (B) has withheld all amounts required by Law or by agreement to be withheld from the wages, salaries and other payments to such employees; (C) is not liable for any Business Employees, including any such Laws relating to wages and hours, payment arrears of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination any other compensation or benefits (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(dvacation or severance pay) been liable for or any taxes related to the payment of USCC Systems or any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, penalty for failure to comply with any employment Laws, or of the foregoing; and (D) is party not liable for any payment to any judgment, settlement agreement, consent decree, trust or other agreement with fund or to any Governmental Entity requiring continuing compliance Authority, with respect to unemployment compensation benefits, social security or reporting other benefits or obligations entered into for such employees (other than routine payments to resolve any labor or employment matterbe made in the normal course of business and consistent with past practice). There Except as set forth on Schedule 4.15(a), to the best of USCC's Knowledge, there are no formal or informal actions, proceedings, controversies, grievancespending claims, charges, proceedings actions or investigations lawsuits filed against the Seller any USCC Entity with any court or any Governmental Authority involving the employment of its Affiliates pertaining or termination of any current or former employees of any USCC Entity who were or are involved in the operation of the USCC Systems. Except as set forth on Schedule 4.15(a), to the best of USCC's Knowledge: (i) there are no such claims, charges, actions or lawsuits threatened, and (ii) no facts exist which could give rise to liability to any Business Employees current or former employees involved in the operation of the USCC Systems.
(b) Schedule 4.15(b) sets forth the name, position, date of hire, current annual salary and/or hourly rate of pay (if applicable), service credited for purposes of vesting and eligibility under any System Employee Plan, the current status of the employee as either active or on leave and if on leave, the type of leave, and the amount of the last salary or rate of pay increase and the date thereof of all regular employees of each USCC Entity and all inactive employees of such USCC Entity on leave or other inactive status. No USCC Entity is a party to and no USCC Entity is bound by any contracts or employment agreements with respect to employees or officers engaged, to any extent, in the operation of the USCC Systems.
(c) To the best of USCC's Knowledge: (i) any individual engaged by any USCC Entity as an independent contractor in connection with the USCC Systems has been accurately classified as an independent contractor for all purposes, including payroll tax, withholding, unemployment insurance and benefits, and (ii) no USCC Entity has notice of any pending or to Seller’s Knowledge threatened to be brought or filed by or with inquiry from any Governmental Entity or arbitrator based on, arising out of, in connection withAuthority concerning such independent contractor status, or otherwise relating any pending or threatened claim by any party that any such independent contractor be reclassified as an employee for any purpose.
(d) On or prior to alleged violation the Closing Date, USCC shall provide AWS with a list of the former employees of any USCC Entity who performed services for the USCC Systems and have terminated employment Laws;due to lay-off or position elimination during the 90 calendar day period preceding the Closing Date with their work location at time of termination, except for terminations of employment pursuant to Section 6.1(a).
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., There are no employment or applicable regulations promulgated by any Governmental Entity severance agreements which are binding on AWS (including the Occupational Health and Safety Administration (“OSHA”as a successor employer or otherwise) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or which will create any obligation whatsoever on the part of its Affiliates pertaining to AWS after the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws Closing in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act employee, manager, agent, contractor or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition officer of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsUSCC.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (United States Cellular Corp)
Employment Matters. Section 3.15 (a) The Company has provided Parent with a list of all Persons who are employees of any Group Company as of the Seller Disclosure Schedule contains last payroll date immediately preceding the date hereof, including any 1103593863\14\AMERICAS employee who is on a true leave of absence of any nature, paid or unpaid, authorized or unauthorized, and complete listing of sets forth for each such individual the names following: (i) name or employment identification number; (ii) title or position; (iii) hire or retention date; (iv) current annual base salary (or annualized hourly wage for the employees paid on an hourly basis); and (v) status as hourly or salary from applicable wage and hour laws. The Company has provided Parent with a list of all Business Employees, together with Material Independent Contractors currently providing services to the following information Group Companies as of the date hereof with respect to each such employee: (a) job titlehereof, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: including (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or name and (ii) increased, augmented or improved benefits granted to or for the benefit of any nature of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation services provided by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;such Material Independent Contractor.
(b) been delinquent Each Group Company is, and since the Look Back Date has been, in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect compliance with all applicable Legal Requirements with respect to labor, employment and employment practices, including all Applicable Laws regarding terms and conditions of employment employment, health and safety, wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sexApplicable Laws concerning overtime, pregnancymeal and rest breaks, marital statuspayroll records, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Lawand pay statements), immigration, harassment, discrimination and retaliation, disability rights or benefits, equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws opportunity (including but not limited to EEO-1 reports, compliance with any affirmative action plans plan obligations), plant closures and other similar records;
(d) been liable for the payment of any claimslayoffs, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity relations (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act of 1935), restrictive covenants, employee leave issues, classification of any Person as amendedan employee or independent contractor, 29 U.S.C. § 158affirmative action and affirmative action plan requirements and Occupational Safety and Health Act requirements.
(c) No Group Company is, nor are any of such Group Company’s employees a party to in connection with their employment with any Group Company, covered or bound by, any collective bargaining agreement or any similar contract with any trade or labor union, employees’ association or similar labor organization (each a “CBA”). There are currently no pending, and since the Look Back Date there have been no material unfair labor practice charges practices, material grievances, material arbitrations, concerted work stoppages, slowdowns, strikes or complaints pending with other material labor disputes. To the Company’s Knowledge, there are not currently, nor have there been since the Look Back Date, any Governmental Entity alleging attempts at union organization of the employees of any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsGroup Company.
(ld) Section 3.15(lEach Group Company has since the Look Back Date reasonably investigated all allegations (including complaints) of sexual harassment, retaliation, sexual misconduct or similar workplace misconduct against any executive-level employees, officers or directors of any Group Company of which (i) there is Company’s Knowledge or (ii) any human resources official or other manager of any Group Company responsible for receiving or investigating such complaints has actual knowledge and reason to believe such could create material Liability. No Group Company reasonably expects any material Liability for any Group Company with respect to any such allegation.
(e) To the Seller Disclosure Schedule contains a complete Company’s Knowledge, no current or former employee or independent contractor of any Group Company is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, noncompetition agreement or restrictive covenant: (i) owed to any Group Company; or (ii) owed to any third party with respect to such person’s right to be employed or engaged by the applicable Group Company.
(f) No Group Company has any material Liability for the following, and accurate description to the Company’s Knowledge, all of the substance following have been paid in full as of the oral notification provided by Seller date hereof (with the exception of any compensation not yet due and payable): (i) any unpaid wages, salaries, wage premiums, commissions, bonuses, fees, or other compensation to represented Business Employees on the transactions contemplated by this Agreementtheir current or former employees and independent contractors under applicable Legal Requirement, including the description of the treatment of the pension plan included Contract or company policy; or (ii) any fines, Taxes, interest, or other penalties for any failure to pay or delinquency in Section 5.5(b)(iii).paying such compensation. 1103593863\14\AMERICAS
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Except as set forth on Schedule contains a true and complete listing of the names of all Business Employees8.13, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:-------------------
(a) Affinity has no:
(i) collective bargaining agreement in effect with respect to Seller’s Knowledgethe employees of Affinity, employed nor
(ii) employment agreement or other agreements, whether oral or written, with any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”the employees of Affinity;
(b) With respect to employees of Affinity:
(i) Affinity is and has been in material compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination, occupational safety and health, and unfair labor practices;
(ii) there is no unfair labor practice complaint against Affinity pending or, to the best of Affinity's knowledge, threatened before the National Labor Relations Board or any comparable state, local or foreign agency;
(iii) there is no labor strike, dispute, slowdown or stoppage pending or, to the best of Affinity's knowledge, threatened against or directly affecting Affinity;
(iv) no union representation question exists and, to the best of Affinity's knowledge, no union organization effort is underway, respecting the employees of Affinity;
(v) Affinity has not experienced any substantial work stoppage in the last eighteen (18) months;
(vi) Affinity is not delinquent in payments to any Business Employee of its employees for any wages (including overtime compensation)wages, salaries, commissions, bonuses or other direct compensation for any services performed by them to the Closing Date or any amounts required to be reimbursed to such Business Employeesemployees;
(cvii) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions upon termination of employment and wages and hours in connection with the employment of any Business Employeesof the employees of Affinity by Lydall after the Closing Date, including Affinity will not be liable to any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities its employees for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar recordsseverance pay;
(dviii) been liable The employment of each of Affinity's employees is terminable at will without cost to Affinity except for payments required under the Plans (as defined in Section 8.23), welfare plans and employee plans and payment of any claims, damages, fines, penalties, accrued salaries or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
wages and vacation pay (e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with Section 3.02). No employee or former employee has any labor organization regarding terms for right to be rehired by Affinity prior to Affinity hiring a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreementperson not previously employed by Affinity;
(iix) experienced any strikeSchedule 8.13 contains a true and complete list of all employees who are employed by Affinity as of October 1, work slowdown2001, and said list correctly reflects their salaries, wages, other material work stoppagecompensation (other than benefits under the Plans, picketingwelfare plans and employee plans), handbillingdates of employment and positions. Affinity does not owe any past or present employees any sum other than for accrued wages, salaries or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against reimbursable expenses for the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employeescurrent payroll period, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including amounts payable under the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this AgreementPlans, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).welfare plans or employee plans;
Appears in 1 contract
Employment Matters. Section 3.15 The Company has provided an anonymized list of the Seller Disclosure Schedule contains a true hiring date, annual salary, commissions, and complete listing bonus of each the names of all Business Employees, together with the following information Current Employee (except for Current Employees who are paid on an hourly wage) as of the date hereof with respect made available to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or CryoLife. To the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any Knowledge of the Business EmployeesCompany, no Relevant Employee intends to terminate his or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for her employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages reason. The Company and each Company Subsidiary is in material compliance with all applicable foreign, federal, state and local Laws (including overtime compensation)except for immaterial violation of a Law) respecting employment, salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment, worker or employee classification, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health, wages (including overtime wages), compensation, plant closings or mass layoffs, and hours of work, and in connection each case, with the employment of any Business respect to Employees: (i) has withheld and reported all amounts required by Law or by Contract to be withheld and reported with respect to wages, salaries and other payments to Employees, including (ii) is not liable for any such Laws relating to wages and hours, payment arrears of wages, child laborholiday pay, family and medical leavebonuses, access to facilities and employment opportunities for disabled personscommissions, employment discrimination (including discrimination based upon sexbenefits, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion severance pay or other classification protected by law any Taxes or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, penalty for failure to comply with any employment Lawsof the foregoing, and (iii) is 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 other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice and applicable Law). Except as set forth in Section 5.23(g) of the Company Disclosure Schedule, since December 31, 2016, there have been no and there are no actions, suits, claims, audits, investigations, or administrative matters pending or, to the Knowledge of the Company, threatened or reasonably anticipated against the Company, the Company Subsidiaries, or any of the Employees relating to any Employee, Employee Agreement or Company Employee Plan. Since December 31, 2016, there have been no and there are no pending or threatened or reasonably anticipated claims or actions against the Company, the Company Subsidiaries, or any Company trustee under any worker’s compensation policy or long-term disability policy. Neither the Company nor any Company Subsidiary is party to any judgment, settlement a conciliation agreement, consent decree, or other agreement Contract or order with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actionsfederal, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection withstate, or otherwise relating local agency or Governmental Authority with respect to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, practices. Neither the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller Company nor any of its Affiliates Company Subsidiary has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity liability with respect to any Business Employees; or
misclassification of: (ka) committed any violation person as an independent contractor rather than as an employee, (b) any Employee leased from another employer, or (c) any Employee currently or formerly classified as exempt from overtime wages in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection accordance with the Business any time in the last three yearsapplicable Law.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Sellers have delivered to Buyers an executive summary of each material (i) “employee benefit plan,” as defined in Section 3.15 3(3) of the Seller Disclosure Schedule contains a true ERISA, (ii) each employment agreement or arrangement, (iii) health or medical benefits, (iv) vacation or sick leave benefits, (v) life or disability insurance benefits, or (vi) other material employee benefit plan, program or arrangement, that is maintained, administered or contributed to by Sellers and complete listing of the names of all Business Employees, together with the following information as of the date hereof that covers any Transferred Employee or with respect to each such employee: which Sellers have any material Liability relating to the Stations (a) job titlecollectively, the “Company Plans”). (b) locationSubject to Sections 14.2 and 14.6, the employment by Sellers of any Transferred Employee is at-will employment, meaning that such Person may be terminated at any time, without penalty or Liability of any kind (c) date of hire (other than accrued vacation pay, COBRA benefits and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula)benefits required by applicable Law, if any, (fand except for severance payments and other obligations required under an employment agreement with any such Transferred Employee) except as such termination may be restricted by the current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any Law of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time jurisdiction in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who which such Person is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;employed.
(c) violated any Laws in any material respect with With respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Transferred Employees, including any such Laws relating to wages Sellers are and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under have been within the last three years in compliance in all material respects with all applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgmentand, settlement agreementexcept as set forth on Schedule 4.20, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There there are no formal active, pending or, to Sellers’ Knowledge, threatened administrative or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against judicial Proceedings under Title VII of the Seller or any Civil Rights Act of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to1964, the U.S. Age Discrimination in Employment Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health Family and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Medical Leave Act, 29 U.S.C. § 185ERISA, the Americans with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of Disabilities Act, the Seller Disclosure ScheduleWorker Adjustment and Retraining Notification Act, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act or any other foreign, federal, state, county or local Law (including common Law), ordinance or regulation relating to Transferred Employees of Sellers, nor are there any internal company investigations concerning alleged violations of the same, in each case that would result in a Material Adverse Effect.
(d) Except as amendedset forth on Schedule 4.20, 29 U.S.C. § 158Sellers have timely paid in full or accrued, with respect to all of their Transferred Employees, all wages, salaries, commissions, bonuses, fringe benefit payments and all other direct and indirect compensation of any kind for all services performed by them and each of them to the date hereof.
(e) Except as set forth on Schedule 4.20, there is not presently pending or existing and, to the Knowledge of Sellers, there is not threatened (i) any labor dispute, strike, slowdown, picketing, or work stoppage, or (ii) any substantial effort to organize any Transferred Employees into a new or modified collective bargaining unit, or (iii) any Transferred Employee grievance under any company policy or employment agreement that would result in a Material Adverse Effect. 13
(f) There are currently is no unfair labor practice charges material dispute, claim, or complaints Proceeding pending with or, to Sellers’ Knowledge, threatened by the U.S. Citizenship and Immigration Services with respect to Sellers.
(g) Neither Sellers nor any Governmental Entity alleging ERISA Affiliate nor any violations predecessor thereof contributes to, or has in the past contributed, with respect to the Stations, to (i) any multiemployer plan, as defined in Section 3(37) of ERISA, (ii) any plan subject to Title IV of ERISA; (iii) an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code; (iv) a multiple employer plan, within the meaning of Section 413(c) of the Code, or (v) any multiple employer welfare arrangement, within the meaning of Section 3(40) of ERISA. “ERISA Affiliate” of any entity means any other entity that, together with such entity, would be treated as a single employer under Section 414 of the Code.
(h) To Sellers’ Knowledge, each of the Company Plans has been established, operated and administered in material compliance with its terms and applicable Law, including but not limited to ERISA and the Code, and no non-exempt prohibited transaction, within the meaning of Section 4975 of the Code or Section 406 of ERISA, has occurred. To Sellers’ Knowledge, no event has occurred and no condition exists that would subject any of the Assets being sold to any Tax, fine, Lien, penalty or other Liability (other than Liabilities incurred in the ordinary course of the plan’s operations that are reflected in the Financial Statements). Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the “IRS”) that it is so qualified or is permitted to rely on the opinion letter of a prototype plan or volume submitter sponsor, and to Sellers’ Knowledge, nothing has occurred since the date of such letter that is reasonably likely to affect the qualified status of such Company Plan.
(i) With respect to Transferred Employees, Sellers have provided Buyers: each such employee’s position; the location at which employed; current compensation rate; and whether such employee participates in the Sellers’ 401(k) Plan and health Plan.
(j) To Sellers’ Knowledge, there are no Transferred Employees who are not in lawful status pursuant to the immigration laws of the United States.
(k) Except as set forth on Schedule 4.20, Sellers do not provide continuation of any benefit to Transferred Employees after termination of employment other than as required under Section 4980B of the Code, or similar provision of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsstate Law.
(l) Section 3.15(l) To Sellers’ Knowledge, no default, violation, error or omission has occurred on or prior to the Closing Date with respect to any of the Seller Disclosure Schedule contains Company Plans for which Buyers could be liable as a complete and accurate description result of the substance consummation of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement. No Company Plan has terms requiring assumption by Buyers. No assets of any Seller are subject to any Lien under any provision of ERISA or the Code.
(m) Except as set forth in Schedule 4.20, and except for stay bonuses and other obligations that will be satisfied by Sellers, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any material 14 payment (including, without limitation, severance pay or unemployment compensation) becoming due to any director or employee of any Seller; (ii) result in the acceleration of vesting under any Company Plan; or (iii) materially increase any benefits otherwise payable under any Company Plan; and any such payment or increase in benefits is fully deductible under the Code, including but not limited to Sections 162, 280G and 404. Except as set forth in Schedule 4.20, and except for stay bonuses and other obligations that will be satisfied by Sellers, neither Sellers nor any ERISA Affiliate has announced any plan or commitment to create any additional Company Plan or to amend or modify any Company Plan.
(n) None of Sellers are, nor has any Seller been in the description past five years, a party to, bound by, or negotiating any collective bargaining agreement or other contract or agreement with a union, works council or labor organization with respect to any Station Employees (collectively, “Union”), and there is not, and has not been for the past five years, any Union representing or purporting to represent any Station Employees, and no Union or group of Sellers’ employees is seeking or has sought to organize Station Employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting any Seller with respect to the Stations or any of the treatment Station Employees. No Seller has any duty to bargain with any Union with respect to the Stations. (o) To Sellers’ Knowledge, and except as otherwise set forth in one or more Schedules for this Section, no event has occurred, and no condition exists, as of, or prior to the Closing Date, with respect to any Company Plan for or with respect to which Buyers could incur any liability, tax, penalty or assessment, regardless of whether any such event or condition is known or unknown, contingent or otherwise, including without limitation, as a result of any matter that could adversely affect the pension plan included in Section 5.5(b)(iiitax-qualified status of a Company Plan (or the tax-exempt status of a related trust), as a result of any act or omission of any fiduciary, actuary or administrator of any Company Plan, or as a result of any claim by a participant or beneficiary.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employment Matters. Section 3.15 (a) Schedule 4.27 (Part A) sets forth a complete list of all Employees, whose current wages, salaries or hourly rates of pay, and bonus (whether monetary or otherwise) exceed $40,000 U.S., together with their titles, service dates and material terms of employment, including current wages, salaries or hourly rates of pay, and bonus (whether monetary or otherwise) paid since the beginning of the Seller Disclosure most recently completed fiscal year (including the date of payment if paid since May 31, 2001) or payable to each such Employee, the date upon which such wage, salary, rate or bonus became effective and the date upon which each such Employee was first hired by the Corporation. Except as disclosed in Schedule contains a true and complete listing 4.27, no Employee is on disability leave, pregnancy or parental leave, extended leave of absence or receiving benefits pursuant to the Laws.
(b) Except for those written employment contracts with salaried Employees identified in Schedule 4.27 (Part B), there are no written contracts of employment entered into with any Employees or any oral contracts of employment which are not terminable on the giving of reasonable notice in accordance with applicable law.
(c) There are no written or oral change of control provisions or Contracts with any of the names Employees which provide for any rights of Employees contingent upon or affected by a change of control of the Corporation or the sale of any or all of their assets.
(d) Schedule 4.27 (Part C) sets out a complete list of all Business Employeesindependent contractors with whom the Corporation has entered into any Contract, together with the following information as material terms of the date hereof all Contracts with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, them.
(e) commissionExcept for the Benefit Plans, bonus there are no employment policies or other additional compensation (or plans which are binding upon the terms thereof, if determined pursuant to a scale or formula), if any, Corporation.
(f) current employee statusThe Corporation has been and is being operated in full compliance with all Laws relating to employees, includingincluding employment standards, if on leaveoccupational health and safety, the type of leavehuman rights, labour relations and pay equity.
(g) hours of accrued vacationThere are no Claims or complaints nor, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in to the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any knowledge of the Business EmployeesCorporation, are there any threatened Claims or (ii) increasedcomplaints, augmented or improved benefits granted to or for against the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments Corporation pursuant to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages employees, including employment standards, human rights, labour relations, occupational health and hourssafety, payment worker's compensation or pay equity. To the knowledge of wagesthe Corporation, child labor, family and medical leave, access nothing has occurred which might lead to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion a Claim or other classification protected by law or retaliation for exercise of rights complaint against the Corporation under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment such Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal outstanding decisions or informal actions, proceedings, controversies, grievances, charges, proceedings settlements or investigations against pending settlements which place any obligation upon the Seller Corporation to do or refrain from doing any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqact., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth All current assessments under workers' compensation legislation in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining relation to the Business Corporation have been paid or any Business Employees, accrued and Seller and its Affiliates have the Corporation has not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsspecial or penalty assessment under such legislation which has not been paid.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (E Cruiter Com Inc)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleSchedule 3.18(a) hereto lists all employees of the Business, (b) locationtheir current rates of compensation and most recent pay increase, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation ratebenefits, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type location of leaveemployment, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation related information requested by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;Buyer.
(b) been delinquent in payments to Seller has not increased the rate of compensation of any key employee of the Business Employee for any wages (including overtime compensation)since August 31, salaries1996, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;except as set forth on Schedule 3.18(b) hereto.
(c) violated Schedule 3.18(c) hereto lists and describes all of Seller's present Employee Benefit Plans. Each Employee Benefit Plan is and at all times has been in full compliance with all applicable Laws. Any past Employee Benefit Plan that has been terminated was done so in full compliance with all applicable Laws, and there is no basis for further liability or obligation of Seller pursuant to any Laws and all past Employee Benefit Plans.
(d) Seller has no Employee Benefit Plan or other agreements (including collective bargaining agreements), arrangements, or plans which would bind or in any way affect Buyer after the Closing Date, regardless of whether Buyer employs any such employees.
(e) Seller is in material respect compliance with respect to all federal, provincial, or other applicable Laws respecting employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeesemployment, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities has not and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but is not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for engaged in any unfair labor practice that would in any way affect Buyer after the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqClosing Date., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act No present or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 former employee of the Labor Management Relations ActBusiness has any claim against Seller (whether under federal or provincial Law, 29 U.S.C. § 185under any employee agreement or otherwise), with 23 that would in any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) way affect Buyer after the Closing Date, on account of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms or for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdownovertime pay, other material work stoppagethan overtime pay for the current payroll period; (ii) wages or salaries, picketingother than wages or salaries for the current payroll period; or (iii) vacations, handbillingtime off or pay in lieu of vacation or time off, other than vacation or bannering due to any organizing activities time off (or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(jpay in lieu thereof) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time earned in the last three years.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan past twelve-month period or as otherwise included in Section 5.5(b)(iii)the Accrued Employee Benefits.
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleNo Employee is covered by, (b) locationand no Seller is bound by, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus a collective bargaining or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “Nolabor-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other related agreement with any Governmental Entity requiring continuing compliance union or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor employee organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending orand, to Seller’s Knowledge, threatened against the Business;
(j) recognized any there have been labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity union organizing activities with respect to any Business Employees; or
employees of Seller in the past three (k3) committed years. No Seller is a party to, or otherwise bound by, any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employedOrder, including any violations of Section 8 of the National Labor Relations Act as amendedconsent decree with, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with citation by, any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller relating to employees or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsemployment practices.
(lb) Section 3.15(l) 4.7 of the Seller Disclosure Schedule contains Schedules sets forth a true, complete and accurate description correct list of all material Seller Benefit Plans, and Sellers have delivered to Buyer copies of the substance plan documents and any amendments thereto with respect to each such Seller Benefit Plan and, to the extent relevant, the most recent IRS determination or opinion letter with respect to any such Seller Benefit Plan. Each Seller Benefit Plan has been operated in all material respects in accordance with its terms and applicable Law. The Sellers do not sponsor, maintain, contribute to or have any liability with respect to any employee benefit plan subject to Title IV of ERISA, and the Sellers have no obligation to provide post-employment welfare benefits to any current employee except as required by Section 4980B of the oral notification Code or similar Law.
(c) Except as would not reasonably be expected to be material to the Business, taken as a whole, Sellers have complied in all material respects with all applicable laws, agreements, contracts and policies relating to employment, employment practices, human rights, wages, hours, meals and rest period breaks, job classifications and terms and conditions of employment.
(d) Sellers have provided by Seller to represented Business Employees on the transactions contemplated by this AgreementBuyer a true, including the description complete and correct list, as of the treatment Agreement Date, of the pension plan included in Section 5.5(b)(iii)names and titles of all full time or part time employees and consultants of Business, together with the date of each employee’s original hiring, base salary or base compensation, leave status and, as applicable, and the bonuses accrued for, and the vacation to which, each such person is entitled.
Appears in 1 contract
Employment Matters. (a) Section 3.15 4.16(a) of the Seller Disclosure Schedule contains Letters sets forth a true and complete listing of the names correct list of all Business Employees, together with the following information as including any Employee who is on a leave of the date hereof with respect to absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such employeeEmployee the following: (ai) job title, name; (bii) location, title or position; (ciii) hire date or engagement date; (iv) regular number of hire hours scheduled to work each week; (and service start date if such date is different from date of hire), v) exempt/non-exempt status; (dvi) current annual base compensation rate, ; and (evii) commission, bonus or other additional incentive-based compensation opportunity.
(or b) Except as set forth on Section 4.16(b) of the terms thereofDisclosure Letters, if determined pursuant with respect to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates hasBusiness: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time is in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any compliance in all material respects with all applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to respecting employment and employment practices, terms and conditions of employment and wages and hours in connection hours; (ii) Seller has withheld and reported all amounts required by Law or Contract to be withheld and reported with respect to wages, salaries and other payments to Employees, (iii) there is no unfair labor practice complaint against Seller pending or, to the employment Knowledge of Seller, threatened before any Governmental Authority with respect to Seller; (iv) Seller has no Liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Business Governmental Authority with respect to wages, unemployment compensation, benefits, social security or other benefits or obligations for employees; (v) there are no discrimination or other employment-related charges or complaints pending before any Governmental Authority against Seller or, to the Knowledge of Seller, threatened against Seller; (vi) Seller is not bound by any employment, consulting, severance, separation, change in control or retention contract with any of its directors, officers or Employees; (vii) Seller has no liabilities to any Employees relating to workers’ compensation benefits that are not fully insured against by third-party insurance carriers; and (viii) Seller has been in material compliance with and has not materially violated the terms and provisions of the Immigration Reform and Control Act of 1986, as amended, or any related regulations promulgated thereunder (the “Immigration Laws”).
(c) Seller is not a party to or otherwise bound by any collective bargaining or other agreement with a labor organization representing any of the Employees. Since January 1, 2020, there has not been any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting Seller or any of the Employees, including nor, to the Knowledge of Seller, has there been any such Laws relating threats of a strike, slowdown, work stoppage, lockout, concerted refusal to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion work overtime or other classification protected by law similar labor activity or retaliation for exercise dispute affecting Seller or any of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;the Employees.
(d) been liable for the payment of any claimsWith respect to each Transferred Employee, damagesSeller has supplied to Buyer a Form I-9 (Employment Eligibility Verification Form) and all other records, fines, penalties, documents or other amounts papers which are retained with the Form I-9 by Seller pursuant to any current the Immigration Laws. Since January 1, 2020, Seller has not been warned, fined or former Business Employees, however designated, for otherwise penalized by reason of its failure to comply with any employment the Immigration Laws, or nor is party any such proceeding pending or, to any judgmentKnowledge of Seller, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;threatened.
(e) materially violated any Laws regulating occupational safety The representations and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as warranties set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to this Section 4.16 are Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, sole and Seller exclusive representations and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearswarranties regarding employment matters.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. (a) Section 3.15 4.19(a) of the Seller Disclosure Schedule contains Schedules sets forth a true true, correct and complete listing of the names of all Business Employees, together with the following information as current employees of the date hereof with respect to Business, and sets forth for each such employeeperson, the following: (a) job titletitle or position (including whether full or part-time), (b) locationlocation (city and state), (c) date of hire (and service start date if such date is different from date of hire)date, (d) base compensation ratecurrent annual salary if salaried or hourly rate of pay if paid hourly, (e) annual commission, bonus or other additional incentive-based compensation (or the terms thereof, if determined pursuant to a scale or formula), if anytargets, (fi) the rate and amount of such compensation paid to each such employee for the current employee status, including, if on leave, the type of leavefiscal year, and (g) hours status as exempt or non-exempt. Section 4.19(a) of accrued vacation, sick days, personal days, float days and any other paid time offthe Disclosure Schedules lists all current employees of the Business, if any, who are out on a leave of absence (whether related to disability, under the Family and Medical Leave Act, or otherwise). Since June 30Section 4.19(a) of the Disclosure Schedule also lists all individuals who provide services to the Company as an independent contractor, 2012including, except for each: (a) the start date of services, (b) the proposed end date of services, and (c) the rate of compensation.
(b) The Company is in compliance in all material respects with all applicable Laws pertaining to employment and employment practices and there are no actions, suits, claims, investigations or other legal proceedings against the Company pending, or to the Knowledge of the Company, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with any alleged employment of any person.
(c) Except as set forth on Section 4.19(c) of the Disclosure Schedules and other than for customary “at will” employment arrangements and offer letters, the Company does not have any written employment contracts.
(d) As of the date hereof: (a) the Company is not delinquent in the ordinary course of business, neither Seller nor any of its Affiliates has: payment (i) increased the compensation payable or to become payable to or for the benefit on behalf of its past or present employees or other persons of any of wages, salaries, commissions, bonuses, benefit plan contributions or other compensation for all periods prior to the Business Employeesdate hereof, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under amount which is due and payable to any Seller Benefit Plan. At state or state fund pursuant to any time in the last three yearsworkers’ compensation statute, neither the Seller nor rule or regulation or any of its Affiliates has:
(a) amount which is due and payable to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
workers’ compensation claimant; (b) been delinquent there are no collective bargaining agreements currently in payments to effect between the Company and labor unions or organizations representing any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
employees; (c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any no such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected collective bargaining agreement is currently being negotiated by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
Company; (d) to the Knowledge of the Company, there are no union organizational drives in progress and there has been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings request to Company for such collective bargaining or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition an employee election from any labor organization, union or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including from the National Labor Relations Board; and (e) for violations to the Knowledge of applicable labor Laws the Company, no dispute exists between Company and any of its sales representatives related to the Business between any such sales representatives with respect to territory, commissions, products or any other terms of their representation.
(e) Except set forth on Section 4.19(e) of the Disclosure Schedules, no Company employees or other service providers will be entitled to any severance or other payment in connection with the Business any time in execution and delivery of this Agreement or the last three yearsconsummation of the transactions contemplated hereby.
(lf) Section 3.15(l) The Company has not extended to any of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)its employees or other service providers any loans or credit.
Appears in 1 contract
Employment Matters. (a) Section 3.15 3.20 of the Seller Disclosure Schedule contains a true identifies (i) all employees currently employed by the Company and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to sets forth each such employee’s: (aA) rate of pay or annual compensation, (B) bonus payments, (C) job title, (bD) locationstate of employment, (cE) date of hire hire, (F) annual vacation and service start date if such date is different from sick time allowance and (G) accrued vacation and sick time as of the Closing Date and (ii) all consultants and independent contractors currently engaged by the Company or previously engaged by the Company at any time during the past twelve (12) months and sets forth each consultant’s and independent contractor’s: (A) rate of pay, (B) scope of services provided, (C) state of engagement and (D) date of hire)engagement and, if applicable, termination of engagement. Except as set forth in Section 3.20 of the Disclosure Schedule, (di) base compensation ratethere are no employment, consulting, independent contractor, severance pay, continuation pay, termination or indemnification Contracts between the Company and any current or former stockholder, officer, director, employee, consultant or independent contractor, (eii) commissionno such Contract will, bonus as a direct or other additional compensation (indirect result of the transactions contemplated hereby, either require any payment by the Company or the terms thereofSurviving Company or any consent or waiver from any stockholder, if determined pursuant to a scale officer, director, employee, consultant or formula)independent contractor, if anyor result in any change in the nature of any rights of any stockholder, (f) current employee statusofficer, director, employee, consultant or independent contractor, including, if on leavebut not limited to, the type any accelerated payments, deemed satisfaction of leavegoals or conditions, new or increased benefits or additional or accelerated vesting and (giii) hours no individual will as a direct or indirect result of accrued vacationthe transactions contemplated hereby, sick daysaccrue or receive additional benefits, personal daysservice or accelerated rights to payments under any Employee Plan, float days and including the right to receive any other paid time offparachute payment, if any. Since June 30as defined in Section 280G of the Code, 2012or become entitled to severance, except termination allowance or similar payments that could result in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit payment of any of the Business Employees, such benefits or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;payments.
(b) been Except as set forth in Section 3.20 of the Disclosure Schedule, (i) the Company is not delinquent in payments to any Business Employee of its officers, directors, employees, consultants or independent contractors for any wages (including overtime compensation)wages, salaries, commissions, bonuses or other direct compensation for any services performed by them through the Closing Date or any amounts required to be reimbursed to such Business Employees;employees, (ii) upon termination of the employment or engagement of any such officers, directors, employees, consultants or independent contractors, the Surviving Company will not by reason of anything done prior to the Closing be liable to any of such officers, directors, employees, consultants or independent contractors for so-called “severance pay” or any other payments other than those that may be required by applicable law, (iii) there is no unfair labor practice complaint against the Company pending before the National Labor Relations Board or any other Governmental Authority, and, to the knowledge of the Company, none of the Company’s employment policies or practices is currently being audited or investigated by any Governmental Authority, (iv) there is no labor strike, dispute, claim, charge, lawsuit, proceeding, labor slowdown or stoppage pending or, to the knowledge of the Company, threatened against or involving the Company, (v) to the knowledge of the Company, no labor union has taken any action with respect to organizing the employees of the Company, (vi) neither any grievance nor any arbitration proceeding arising out of or under collective bargaining agreements is pending and, to the knowledge of the Company, no claim therefor has been asserted against the Company and (vii) no officer, director, employee, consultant or independent contractor has informed the Company that such officer, director, employee, consultant or independent contractor will terminate his or her employment or engagement with the Company and the Company does not have any reason to believe that any of the employees, consultants or independent contractors of the Company will not remain employees, consultants or independent contractors of the Surviving Company for at least 180 days after the Closing.
(c) violated Neither the Company nor, to the knowledge of the Company, any Laws officers, directors, employees, consultants or independent contractors of the Company is in violation of any material respect with respect term of any employment, consulting, independent contractor, non-disclosure, non-competition, inventions assignment or any other Contract relating to employment and employment practicesthe relationship of such officer, terms and conditions of employment and wages and hours in connection director, employee, consultant or independent contractor with the employment of Company or any Business Employeesother Person. All individuals considered by the Company to be independent contractors are reasonably considered to be “independent contractors” and do not constitute “employees” or “common law employees” for tax, including any such Laws relating to wages and hoursbenefits, payment of wageswage, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion labor or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;legal purposes.
(d) been liable for During the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against twelve-month period immediately preceding the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited toClosing Date, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any Company has had adequate levels of employee staffing to conduct its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees business in accordance with applicable Laws;
(f) implemented any plant closingits staffing patterns and practices. The current employees, mass layoff consultants and independent contractors of Business Employees that could require notice (without regard the Company constitute sufficient personnel to any actions that could be taken by continue the Buyer operations of business of the Company uninterrupted immediately following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsClosing Date.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Alloy Inc)
Employment Matters. Section 3.15 of the Seller Disclosure (a) Schedule contains 4.33 sets forth a true complete and complete listing of the names accurate list of all Business Employees, together with their titles, service dates and terms of employment, including current wages, salaries or hourly rate of pay, benefits, vacation entitlement, commissions and bonus (whether monetary or otherwise) or other material compensation paid since the following information as beginning of the date hereof with respect most recently completed fiscal year or payable to each such employee: (a) job title, Employee and the date upon which each such term of employment became effective if it became effective in the 12 month period prior to the date of this Agreement.
(b) locationCurrent and complete copies of all Employment Contracts or, (c) date where oral, written summaries of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant have been delivered or made available to a scale the Purchaser. Except for those Employment Contracts listed in Schedule 4.33, there are no Employment Contracts which are not terminable on the giving of the minimum period of notice in accordance with applicable Law, nor are there any Employment Contracts providing for cash, other compensation, benefits or formula), if any, (f) current employee status, including, if contingent rights on leave, Closing or granting any rights in respect of the type ownership of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable Business or to become payable to or for the benefit of any of the Business EmployeesPurchased Assets, or (ii) increased, augmented or improved benefits granted to or for the benefit manner of any operation of the Business Employees under or any Seller Benefit Plansharing of income or the payment of commission or royalties relating to the Business. At any time To the knowledge of the Vendor, no person employed in the last three years, neither the Seller nor Business has any of its Affiliates has:
(a) plans to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, terminate his or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;her employment.
(c) violated There are no Claims, pending Claims nor, to the knowledge of the Vendor, threatened Claims pursuant to any Laws relating to the Employees or former employees, including employment standards, human rights, discrimination (whether on account of gender, disability, family status or otherwise), labour relations, occupational health and safety, severance payment, long service payment, terminal payment, personal injury, workers’ or employees’ compensation or pay equity. Except as disclosed in Schedule 4.33, to the knowledge of the Vendor, nothing has occurred which might lead to a Claim under any material respect with respect such Laws. There are no outstanding decisions, Orders or settlements or pending settlements which place any obligation upon the Vendor to employment and employment practices, terms and conditions do or refrain from doing any act.
(d) No Employment Contract or term of employment and wages and hours in connection with the employment of any Employee provides that a change of control of the Business Employees, including any shall entitle such Laws relating Employee to wages and hours, treat his or her employment as terminated resulting in a right to payment of wagesany severance, child laborlong service or termination payment.
(e) All current assessments, family orders for payment or agreed settlement sums in respect of personal injury to Employees under workers’ or employees’ compensation legislation in relation to the Business and medical leave, access to facilities all of the contractors and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion subcontractors of the Vendor have been paid or other classification protected accrued by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practicesthe Vendor. The Business has filed not been and maintained is not subject to any additional or penalty assessment under workers’ or employees’ compensation legislation which has not been paid and has not been given notice of any audit.
(f) The Vendor has made available to the Purchaser for review all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 inspection reports, affirmative action plans workplace audits or written equivalent, made under any occupational health and other similar records;
(d) been liable for safety legislation which relate to the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matterBusiness. There are no formal outstanding inspection Orders or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or written equivalent made under any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with legislation which relates to the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);Business.
(g) been a party to, or bound by, The Vendor does not have any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within obligation under the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
Worker Adjustment and Retraining Notification Act (hCalifornia) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreementsimilar federal, neutrality foreign, state or card-check recognition agreementlocal law, regulation or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsordinance.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 (a) Schedule 4.28 sets forth a complete and accurate list of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with their titles, service dates and material terms of employment, including current wages, salaries or hourly rate of pay, benefits, vacation entitlement, commissions and bonus (whether monetary or otherwise) or other material compensation paid since the following information as beginning of the most recently completed fiscal year Schedule 4.28 also lists Employees on inactive status, including lay-off, short-term disability leave, long-term disability leave, pregnancy and parental leave or other extended absences, or receiving benefits pursuant to workers’ compensation legislation, and specifies the last date hereof with respect to of active employment, the reason for the absence and the expected date of return of each such employee: (a) job title, Employee.
(b) locationCurrent and complete copies of all Employment Contracts or, (c) date where oral, written summaries of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant have been delivered or made available to a scale the Purchaser. There are no Employment Contracts which are not terminable on the giving of reasonable notice in accordance with applicable Law, nor are there any Employment Contracts providing for cash, other compensation, benefits or formula), if any, (f) current employee status, including, if contingent rights on leave, Closing. To the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any knowledge of the Business EmployeesVendor, no executive employed by the Company has any plans to terminate his or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;her employment.
(c) violated There are no Claims, pending Claims nor, to the knowledge of the Vendor, threatened Claims pursuant to any Laws relating to the Employees or former employees, including employment standards, human rights, labour relations, occupational health and safety, workers’ compensation, pay equity or employment equity. To the knowledge of the Vendor, nothing has occurred which might lead to a Claim under any such Laws.
(d) All current assessments under workers’ compensation legislation in relation to the Company and all of their respective contractors and subcontractors have been paid or accrued. The Company has not been or is subject to any additional or penalty assessment under such legislation which has not been paid or has been given notice of any audit. Moreover, the Vendor’s accident cost experience is such that there are no pending nor, to the knowledge of the Vendor, potential assessments, experience rating charges or Claims which could adversely affect the Vendor’s premium payments or accident cost experience or result in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours additional payments in connection with the employment of any Business Employees, including any such Laws relating Company.
(e) The Vendor has made available to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities the Purchaser for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained review all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 inspection reports, affirmative action plans workplace audits or written equivalent, made under any occupational health and other similar records;
(d) been liable for safety legislation which relate to the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matterCompany. There are no formal outstanding inspection Orders or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or written equivalent made under any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining legislation which relate to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsCompany.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant The Entities are not a party to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for written employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;agreements.
(b) All vacation pay accrued up to the Closing Date have been delinquent in payments paid by the Entities such that on the Closing Date there is no vacation paying owing to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them the employees of the Entities or any amounts required to be reimbursed to such Business Employees;former employees of the Entities.
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions The individuals listed on Schedule 4.16(c) hereto are the only employees of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practicesEntities on the Closing Date. The Business has filed date of birth, hire date, salary for the past three years and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;title of each Employee is set out on Schedule 4.16(c).
(d) been The Entities have satisfied all of their respective obligations and liabilities to their respective employees and former employees arising out of their employment under all applicable Laws, including those with respect to any and all lay-offs and terminations of any employees.
(e) The Entities have not made and are not otherwise bound by any Contracts with any labour union or employee association (not including any Guild Agreement, if any).
(f) The Entities have no Contracts nor are they bound or otherwise liable under any Contracts for the payment of any claimsbonus, damageswork incentive, finesprofit sharing, penaltiessavings, retirement, deferred compensation, stock option, stock purchase, pension, hospitalization, medical, dental, vision care, drug, sick leave, life insurance, weekly indemnity, long term disability, supplemental unemployment benefit, legal assistance, or any other amounts sort or type of benefit or insurance plan, whether self-insured or otherwise, except for the employee plans listed on Schedule 4.16(f). The employee plans listed on Schedule 4.16(f) are referred to any current or former Business Employeesherein as the “Employee Plans”. Other than the Employee Plans, however designatedthe Entities do not, for failure to comply with any employment Lawsand have not, within the past three (3) years, maintained, contributed to, or is party to administered any judgment“employee pension benefit plan” as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, settlement agreementas amended (“ERISA”), consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against (the Seller “Pension Plans”) or any “employee welfare benefit plan”, as defined in Section 3(1) of its Affiliates pertaining to any Business Employees pending ERISA, (the “Welfare Plans”).
(g) The Entities have delivered or to Seller’s Knowledge threatened has caused to be brought or filed by or with delivered to Purchaser true and complete copies of the Employee Plans (including any Governmental Entity or arbitrator based onamendments, arising out ofrelated trust agreements, in connection withcustodial agreements, or otherwise relating to alleged violation of any employment Laws;insurance contracts, investment contracts and other funding arrangements, if any).
(eh) materially violated Each Employee Plan has been maintained in compliance with its terms and the requirements prescribed by any Laws regulating occupational safety and health includingall statutes, orders, rules and regulations, including but not limited to, ERISA and the U.S. Occupational Safety and Health ActCode, 29 U.S.C. §§ 651, et seqwhich are applicable to such Employee Plan., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute There are no pending or, to Seller’s Knowledgethe knowledge of the Entities, threatened (A) claims, suits or other proceedings by any employees, former employees or plan participants, other than ordinary and usual claims for benefits, or (B) suits, investigations or other proceedings by any governmental agency or authority, of or against the Business;any Employee Plan.
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; orThe Entities have made all required contributions under each Pension Plan on a timely basis.
(k) committed Neither the Entities nor any violation ERISA Affiliate has ever maintained, adopted or established, contributed to, or otherwise participated in any material respect (i) defined benefit pension plan covered by Title IV of any labor Laws ERISA or (ii) “multiemployer plan” (as defined in Section 3(37) of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsERISA).
(l) Section 3.15(lNo Employee Plan provides benefits, including any severance or other post-employment benefit, or health or medical benefits (whether or not insured), to current or former employees (or their spouses or dependents) of the Seller Disclosure Schedule contains Entities beyond their retirement or other termination of service other than (A) coverage mandated by applicable law, or (B) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(m) All steps necessary to terminate the Castle Hill Productions, Inc. Profit Sharing Plan, other than the making of distributions, have been made. Immediately following the Closing, in accordance with Section 9.13, all distributions required under the Castle Hill Productions, Inc. Profit Sharing Plan necessary in order to terminate the plan will be made and, as a complete and accurate description result, the plan will terminate.
(n) No notice has been received by either of the substance Entities of any complaints filed by any of the oral notification provided by Seller employees against such Entity claiming that the Entity has violated any Law.
(o) There are no actual or, to represented Business Employees on the transactions contemplated by this Agreement, including the description knowledge of the treatment Vendors, threatened actions for wrongful dismissal involving any former employee of either of the pension plan included in Section 5.5(b)(iii)Entities.
Appears in 1 contract
Samples: Purchase Agreement (Peace Arch Entertainment Group Inc)
Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job titleExcept as set forth on Schedule 4.17(a) of the Disclosure Schedule, (b) locationas of May 3, (c) date of hire (and service start date if such date is different from date of hire)1999, (d) base compensation rate, (e) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased there were no employment contracts or severance agreements with any employees of the compensation payable Company or any Company Subsidiary, (ii) there were no written personnel policies, rules or procedures applicable to become payable employees of the Company or any Company Subsidiary and (iii) to the knowledge of the Company or for the benefit Company Subsidiaries, no key employee or group of employees had any plans to terminate their employment with the Company or any Company Subsidiary as a result of any of the Business Employeestransactions contemplated by this Agreement or otherwise.
(b) Between the enactment of the WARN Act and May 3, 1999, neither the Company nor any Company Subsidiary had effectuated (i) a "plant closing" (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any Company Subsidiary or (ii) increased, augmented a "mass layoff " (as defined in the WARN Act) affecting any site of employment or improved benefits granted facility of the Company or any Company Subsidiary; nor had the Company or any Company Subsidiary been affected by any transaction or engaged layoffs or employment terminations sufficient in number to or for the benefit trigger application of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, similar state or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;local Law.
(c) violated any Laws Except as set forth on Schedule 4.17(c) of the Disclosure Schedule or as would not have reasonably been expected to have a Material Adverse Effect, to the Company's knowledge, as of May 3, 1999, the Company and each of the Company Subsidiaries (i) was in any material respect compliance with respect to employment all currently applicable laws and employment practicesregulations respecting employment, discrimination in employment, terms and conditions of employment and wages and hours in connection with the employment of any Business Employeesemployment, including any such Laws relating to wages and hours, payment of wages, child labor, family hours and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health includinghealth, but and employment practices, and were not limited toengaged in any unfair labor practice, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”ii) or comparable state agencies). There are currently had no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller workers compensation claims or any of its Affiliates pertaining to the Businessuninsured claims for long term disability, and neither Seller nor any (iii) had no obligation under the Consolidated Omnibus Budget Reconciliation Act of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA)1985, including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges the Family and Medical Leave Act of 1993, as amended, or complaints pending with any Governmental Entity alleging any violations the Health Insurance Portability and Accountability Act of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three years1996.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Firstamerica Automotive Inc /De/)
Employment Matters. Section 3.15 9.1.12.1. None of the Seller Disclosure Schedule contains Seller's employees are covered by a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job title, (b) location, (c) date of hire (and service start date if such date is different from date of hire), (d) base compensation rate, (e) commission, bonus collective bargaining agreement or other additional compensation (or the terms thereof, if determined pursuant to are represented by a scale or formula), if any, (f) current employee status, including, if on leave, the type of leavelabor organization, and (g) hours of accrued vacation, sick days, personal days, float days and any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or no petition for the benefit of representation concerning any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;
(b) been delinquent in payments to any Business Employee for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for any services performed by them or any amounts required to be reimbursed to such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions of employment and wages and hours in connection with the employment of any Business Employees, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates 's employees has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection filed with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations ; the Seller is not aware of any union organizational activity and has no reason to believe that any such activity is being contemplated. The Seller has not engaged in any unfair labor practice.
9.1.12.2. Seller is not in violation of applicable labor equal employment opportunity wage and hour or any other Laws of any Government or Governmental Agency relating to employment; there are no active, pending, or threatened administrative or judicial proceedings under any Laws of any Government or Governmental Agency; there are no claims, charges, and employment related suits or controversies which have occurred within the last 10 years or are presently pending or threatened under any employment related Laws of any Government or Governmental Agency; and the Seller is not subject to any judgments, decrees, conciliation agreements and settlement agreements concerning employment related matters.
9.1.12.3. The Seller has not entered into any employment agreements with any of its employees, and all employees may be terminated at will; there is no contractual obligation or special termination or severance arrangement in respect of any of Seller's employees; and there is no provision of any agreement or arrangement with any of the Seller's employees, or any other legal or contractual requirement, which would obligate the Seller to require the Purchaser of the Assets to employ any of the Seller's employees.
9.1.12.4. The Seller has paid all wages or amounts that have been listed within this agreement, bonuses, commissions and other benefits and sums due (and all required taxes, insurance, social security and withholding thereon). All accrued vacation, accrued sick leave, accrued benefits and accrued payments (and pro rata accruals for a portion of a year) to its employees.
9.1.12.5. The Seller has maintained in effect all insurance policies and other employee benefits covering any employee claims incurred through the Closing Date and will assign, transfer and deliver contracts to the Purchaser.
9.1.12.6. The Purchaser is under no obligation or duty, whether under any contract, agreement, understanding or arrangement or under any applicable Law of any Government or Governmental Agency to assume or be responsible for any obligation, duty or liability, now existing or hereafter arising, relating to or in connection with the Business Seller's employees or any time compensation, benefits or benefit plans in the last three years.
(l) Section 3.15(l) respect of the Seller Disclosure Schedule contains a complete and accurate description Seller's employees, or otherwise arising out of the substance of the oral notification provided by Seller to represented Business Employees on or in connection with the transactions contemplated by this Agreement, including and the description Seller has made no commitment and is under no obligation to cause the Purchaser of the treatment of the pension plan included in Section 5.5(b)(iii)Assets to assume or to be responsible for any such obligation, duty or liability.
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Samples: Asset Purchase Agreement (Acadia National Health Systems Inc)
Employment Matters. (a) Section 3.15 3.17(a) of the Seller Company Disclosure Schedule contains sets forth a true complete and complete listing of the names accurate list of all Business Employees, together with the following information Employees as of the date hereof with respect to and each such employee: Employee’s (ai) job titlerate of pay or annual compensation (including actual or potential bonus payments), (bii) locationtitle(s), (ciii) status of employment or engagement, (iv) date of hire (and service start date if such date is different from date of hire)or engagement, (dv) base compensation rateannual vacation, sick and other paid time off allowance, (evi) commission, bonus or other additional compensation (or the terms thereof, if determined pursuant to a scale or formula), if any, (f) current employee status, including, if on leave, the type of leave, and (g) hours amount of accrued vacation, sick days, personal days, float days and any other paid time off, if any(vii) description of other fringe benefits, and (viii) terms of severance benefits. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (iSection 3.17(a) increased the compensation payable or to become payable to or for the benefit of any of the Business Employees, or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Company Disclosure Schedule also identifies each Employee who is not legally eligible for employment under applicable immigration Lawsfully available to perform his or her duties as a result of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service. Each Employee is a resident of the United States. There are no severance pay, violated continuation pay, termination or indemnification Contracts between the Company and any applicable Laws pertaining to immigration and work authorization, current or received notice from any Governmental Entity former Employee of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;the Company.
(b) been The Company is not delinquent in payments to any Business Employee of its Employees for any wages (including overtime compensation)wages, salaries, commissions, bonuses bonuses, benefits or other direct compensation for any services performed by them them, or any amounts required to be reimbursed to any such Business Employees;
(c) violated any Laws in any material respect with respect to employment and employment practices, terms and conditions Employee. Upon termination of employment and wages and hours in connection with the employment or engagement of any Business EmployeesEmployee, including any such Laws relating to wages and hours, payment of wages, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacy, and fair employment practices. The Business has filed and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for neither the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is party to any judgment, settlement agreement, consent decree, or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matter. There are no formal or informal actions, proceedings, controversies, grievances, charges, proceedings or investigations against the Seller or any of its Affiliates pertaining to any Business Employees pending or to Seller’s Knowledge threatened to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller Company nor any of its Affiliates has been cited will, by reason of anything done prior to the Closing, be liable to any Governmental Entity (including OSHA Employee for so called “severance pay” or any comparable state agency) for violations of applicable occupational health and safety Laws other similar payments, and, to the Company’s knowledge, there are no circumstances whereby any current or former Employee may demand payment or compensation in connection with the Business termination of his or her employment. No current Employee has informed the Company that such individual intends to terminate his or her employment or engagement with the Company.
(c) Neither the Company nor, to the knowledge of the Company, any time Employee is in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by violation of any occupational safety and health Laws term of any employment, consulting, independent contractor, non-disclosure, non-competition, inventions assignment or any Governmental Entity other Contract (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees or any other legal obligation such as a trade secrets statute or common law duty of loyalty) relating to the relationship of such Employee with the Company or has been notified that such Employee may be in accordance with applicable Laws;violation of any such Contract or other legal obligation.
(fd) implemented any plant closing, mass layoff of Business Employees that could require notice (without regard The Company is not party to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects collective bargaining agreement, neutrality or card-check recognition agreement, Contracts or other labor agreement within the definition of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, Contracts with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) unions or other representatives of the Seller Disclosure ScheduleEmployees of the Company (a “Labor Contract”). No labor union, been involved in negotiations with any labor organization regarding terms for a Collective Bargaining Agreement covering any Business Employees, or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced representative has been certified or recognized as the collective bargaining representative of any strike, work slowdown, other material work stoppage, picketing, handbilling, Employees of the Company. There are no union organizing campaigns or bannering due to any organizing activities representation proceedings or other material labor dispute pending campaigns in process or, to Sellerthe Company’s Knowledgeknowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no existing or threatened labor strikes, work stoppages, organized slowdowns, unfair labor practice charges or complaints or labor arbitration proceedings affecting any Employee of the Company nor has the Company experienced any of the foregoing within the past two (2) years.
(e) There are no unfair labor practice complaints or other Actions pending with any Governmental Entity alleging any violations or, to the knowledge of applicable labor Laws pending the Company, threatened against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including Company before the National Labor Relations Board) for violations of applicable labor Laws in connection with , any Court or any Governmental Authority concerning any Employee. There are no complaints or other Actions pending or, to the Business any time in the last three years.
(l) Section 3.15(l) knowledge of the Seller Disclosure Schedule contains a complete and accurate description Company, threatened by or on behalf of the substance any Employee alleging breach of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii)any express or implied Contract.
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Employment Matters. Section 3.15 of the Seller Disclosure Schedule contains a true and complete listing of the names of all Business Employees, together with the following information as of the date hereof with respect to each such employee: (a) job Disclosure Schedule 4.19(a) sets forth a complete and accurate list of all the employees of the Company, whether full-time or part-time, setting forth for each employee (i) title, (bii) locationlocation of employment, (ciii) date of original hire (and service start date if such date is different from date of hire)date, (div) current annual base compensation ratesalary, (ev) commission, bonus or other additional compensation two (or the terms thereof, if determined pursuant to a scale or formula), if any2) year salary history, (fvi) current employee statusbonus targets, including, if on leave, (vii) bonuses received over the type of leavepast two (2) years, and (gviii) hours of accrued vacationif applicable, sick days, personal days, float days and status as a temporary employee. Neither Purchaser nor the Company will incur any other paid time off, if any. Since June 30, 2012, except in the ordinary course of business, neither Seller nor any of its Affiliates has: (i) increased the compensation payable or to become payable to or Liability for the benefit improper classification by the Company of any of such employees as independent contractors or leased employees prior to the Business Employees, Closing or (ii) increased, augmented or improved benefits granted to or for the benefit of any of the Business Employees under any Seller Benefit Plan. At any time in the last three years, neither the Seller nor any of its Affiliates has:
(a) to Seller’s Knowledge, employed any Business Employee who is not legally eligible for employment under applicable immigration Laws, violated any applicable Laws pertaining to immigration and work authorization, or received notice as being exempt from any Governmental Entity of any investigation by any Governmental Entity regarding noncompliance with applicable immigration Laws, including U.S. Social Security Administration “No-Match” letters”;overtime pay.
(b) been delinquent in payments to There are no collective bargaining agreements with any Business Employee union or other bargaining group for any wages (including overtime compensation), salaries, commissions, bonuses or other direct compensation for employees of the Company and the Initial Members have no knowledge of any services performed by them or any amounts required to be reimbursed to union organizational efforts involving such Business Employees;employees.
(c) violated Disclosure Schedule 4.19(c) sets forth a list of employees who have left the Company since January 1, 2009. No current employee has indicated any present or future intention or, to the Initial Members’ knowledge, intends to terminate his or her employment with the Company or not to engage in employment with Purchaser. No Initial Member and, to the Initial Members’ knowledge, no other officer or Designated Employee of the Company has any open offer of employment (or open offer for a similar contacting arrangement) from any third party.
(d) The Company is and, during all periods for which applicable statute of limitations for potential Actions have not yet expired, has been in material compliance with all applicable Laws in any material respect with respect to employment and respecting labor, employment, industrial relations, employment practices, terms and conditions of employment and wages and hours in connection with the employment including, (i) Laws regarding terms and conditions of any Business Employeesemployment, including any such Laws relating to wages and hours, payment of wagesequal opportunity, child labor, family and medical leave, access to facilities and employment opportunities for disabled persons, employment discrimination (including discrimination based upon sex, pregnancy, marital status, age, race, color, national origin, ethnicity, sexual orientation, disability, veteran status, religion or other classification protected by law or retaliation for exercise of rights under applicable Law), equal employment opportunities and affirmative action, employee privacybenefits, plant closing and mass layoff, occupational safety and health, immigration and workers’ compensation, (ii) Laws relating to the employment of persons who are not citizens or lawful permanent residents of the United States, (iii) Laws relating to the documentation and recordkeeping of employees’ identity and work authorization, and fair employment practices(iv) the Service Contract Act of 1965, as amended. The Business Company is not and has filed not engaged in any unfair labor practice and maintained all records and reports pertaining to equal employment opportunities required under applicable employment Laws including but is not limited to EEO-1 reports, affirmative action plans and other similar records;
(d) been liable for the payment of any claims, damages, fines, penalties, or other amounts to any current or former Business Employees, however designated, for failure to comply with any employment Laws, or is a party to any judgmentAction involving a violation or alleged violation of any of the foregoing Laws.
(e) All amounts due or accrued due for all salary, settlement agreementwages, consent decreebonuses, commissions, vacation with pay, and benefits under Employee Benefit Plans have either been paid or other agreement with any Governmental Entity requiring continuing compliance or reporting obligations entered into to resolve any labor or employment matterare accurately reflected in the Books and Records. There are no formal or informal actionsoutstanding assessments, proceedingspenalties, controversiesfines, grievancesliens, charges, proceedings surcharges or investigations against the Seller other amounts due or any of its Affiliates pertaining owing pursuant to any Business Employees pending applicable workplace safety or insurance Laws, and the Company has not been reassessed under such Laws during the past three years, and to Seller’s Knowledge threatened the knowledge of the Initial Members, no audit of the Company is currently being performed with respect to be brought or filed by or with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to alleged violation of any employment Laws;
(e) materially violated any Laws regulating occupational applicable workplace safety and health including, but not limited to, the U.S. Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seqinsurance legislation., or applicable regulations promulgated by any Governmental Entity (including the Occupational Health and Safety Administration (“OSHA”) or comparable state agencies). There are currently no citations or other proceedings under applicable occupational safety and health Laws or regulations pending against Seller or any of its Affiliates pertaining to the Business, and neither Seller nor any of its Affiliates has been cited by any Governmental Entity (including OSHA or any comparable state agency) for violations of applicable occupational health and safety Laws in connection with the Business any time in the last five years. Seller and its Affiliates maintains all records and reports pertaining to occupational health and safety required by any occupational safety and health Laws or any Governmental Entity (including OSHA), including OSHA-300 injury logs. Further, Seller and its Affiliates maintain workers’ compensation coverage for all Business Employees in accordance with applicable Laws;
(f) implemented any plant closingExcept as disclosed on Disclosure Schedule 4.19(f), mass layoff of Business Employees that could require notice (without regard to any actions that could be taken by the Buyer following the Closing) under applicable Laws (including the WARN Act or any similar state Laws);
(g) been a party to, or bound by, any Collective Bargaining Agreement, effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement within the definition of Section 301 each of the Labor Management Relations Act, 29 U.S.C. § 185, with any labor organization representing any Business Employees;
(h) except as set forth in 3.15(h) of Company’s employees has provided the Seller Disclosure Schedule, been involved in negotiations with any labor organization regarding terms for Company a Collective Bargaining Agreement covering any Business Employees, proper Form I9 indicating he or any effects bargaining agreement, neutrality or card-check recognition agreement, or other labor agreement;
(i) experienced any strike, work slowdown, other material work stoppage, picketing, handbilling, or bannering due to any organizing activities or other material labor dispute pending or, to Seller’s Knowledge, threatened against the Business;
(j) recognized any labor organization as the representative of any Business Employees, received any demand for recognition from any labor organization, or been party to any petition for recognition or representation rights with any Governmental Entity with respect to any Business Employees; or
(k) committed any violation in any material respect of any labor Laws of any jurisdiction where the Business Employees are employed, including any violations of Section 8 of the National Labor Relations Act as amended, 29 U.S.C. § 158. There are currently no unfair labor practice charges or complaints pending with any Governmental Entity alleging any violations of applicable labor Laws pending against the Seller or any of its Affiliates pertaining to the Business or any Business Employees, and Seller and its Affiliates have not been subject to any remedial order issued by any Governmental Entity (including the National Labor Relations Board) for violations of applicable labor Laws in connection with the Business any time in the last three yearsshe is a United States citizen.
(l) Section 3.15(l) of the Seller Disclosure Schedule contains a complete and accurate description of the substance of the oral notification provided by Seller to represented Business Employees on the transactions contemplated by this Agreement, including the description of the treatment of the pension plan included in Section 5.5(b)(iii).
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