Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof. (b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees. (c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries. (d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries. (e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries. (f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries. (g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress. (h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. (i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Phoenix International LTD Inc), Asset Purchase Agreement (London Bridge Software Holdings PLC)
Labor and Employment Matters. (a) Section 3.16(a) of Except as has not had and would not reasonably be expected to have, individually or in the Seller Disclosure Letter contains aggregate, a true Company Material Adverse Effect, the Company and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectivelyits Subsidiaries are, and annual rate for the past three years have been, in compliance with all Applicable Laws respecting employment, including discrimination or harassment in employment, terms and conditions of compensation employment, termination of employment, wages, overtime classification, hours, occupational safety and (b) all health, employee whistle-blowing, immigration, employee privacy, employment practices, and classification of the employees (whether full-timeemployees, part-time or otherwise) consultants and independent contractors of contractors. In the Seller and the Subsidiaries as of past three years through the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller Company has not received a claim from written notice of any audits or investigations pending or scheduled by any Governmental Entity Authority pertaining to the effect that employment practices of the Seller Company or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of its Subsidiaries. To the Knowledge of the Seller Disclosure Letter. Except as set forth Company, in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on past three years through the date hereof.
(b) , no written complaints relating to employment practices of the Company have been made to any Governmental Authority or submitted to the Company or any of its Subsidiaries. Neither the Seller Company nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. Neither the Company nor any of its Subsidiaries has any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, or (b) any employee currently or formerly classified as exempt from overtime wages under federal, state, local, or foreign wage and hour laws.
(b) Neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining agreement Contract that pertains to employees of the Company or any of its Subsidiaries. To the Knowledge of the Company, as of the date hereof, neither the Company nor any Subsidiary of the Company is subject to any charge, demand, petition or representation Proceeding seeking to compel, require or demand it to bargain with any labor union, labor organization, works council or other contractsemployee representative body. As of the date hereof, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There there is no existing, pending or, to the knowledge Knowledge of the SellerCompany, threatened (i) unfair labor practice charge strike, slowdown, stoppage, picketing or complaintlockout involving the Company or any Subsidiary of the Company, and there has been no such activity pending or, to the Knowledge of the Company, threatened within the past twelve months. As of the date hereof, there are no material actions, suits, claims, labor disputedisputes or grievances pending or, to the Knowledge of the Company, threatened or reasonably anticipated relating to any labor arbitration proceeding or matters involving any other matter before employee of the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity including charges of unfair labor practices. Neither the Company nor any of its Subsidiaries has, in the past three years, engaged in any unfair labor practices within the meaning of the National Labor Relations Act. To the Knowledge of the Company, as of the date hereof, there are no efforts pending or proceeding threatened by a or on behalf of any labor union union, labor organization, works council or other employee representative thereof body to organize any employees of the Seller Company or any of its Subsidiaries. Except for extension orders which generally apply to all employees in Israel, no extension orders apply to the Company or to any of its Subsidiaries and no employee of the Company or its Subsidiaries benefits from any such extension orders.
(c) No notice, consent or consultation obligations with respect to any employees of Company or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises any labor organization, works council, trade union, employee association or other employee representative body representing employees of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller Company or any of its Subsidiaries, will be a condition precedent to, or triggered by, the execution of this Agreement or the consummation of the transactions contemplated hereby.
(d) The Seller To the Knowledge of the Company, the Company has delivered accurate and its Subsidiaries are in compliance with complete copies of all applicable Laws relating to employment employee manuals and the payment of wages and benefits. There are nohandbooks, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, all material written policies applicable to the knowledge employees of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any Company and all of its Subsidiaries.
(e) The Seller and Section 4.17(e) of the Company Disclosure Schedule sets forth the following for each employee of the Company or any of its Subsidiaries are as of the date of this Agreement: position; job location; employing entity; date of hire; annual base salary or hourly wage rate; annual bonus opportunity; exempt or non-exempt classification for wage and hour; status (i.e., active or inactive and if inactive, the type of leave and estimated duration); any visa or work permit status and the date of expiration, if applicable; the total amount of bonus, retention, severance and other amounts to be paid to such employee at the Closing Date or otherwise in compliance connection with all immigration laws relating the transactions contemplated hereby; and whether such employee is subject to employment the Section 14 Arrangement under the Israeli Severance Pay Law - 1963 (“Section 14 Arrangement”) (and, to the knowledge extent such employee is subject to the Section 14 Arrangement, an indication of whether such arrangement has been applied to such person from the commencement date of his employment and on the basis of his entire salary). No executive or key employee of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller Company or any of its Subsidiaries: (i) to the Knowledge of the Company, has given notice of termination of employment or otherwise disclosed plans to terminate employment with the Company or any of its Subsidiaries within the twelve-month period following the date hereof, (ii) is employed under a non-immigrant work visa or other work authorization that is limited in duration, or (iii) to the Knowledge of the Company, has been the subject of any sexual harassment, sexual assault, sexual discrimination or other misconduct allegations during his or her tenure at the Company or any of its Subsidiaries during the last three years.
(f) There In the past three years, neither the Company nor any of its Subsidiaries has experienced a “plant closing,” “mass layoff” or similar group employment loss as defined in the federal Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar state or local law or regulation 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 or any Subsidiary in the past three years. No anticipated terminations prior to the Closing would trigger any notice or other obligations under the WARN Act or similar state or local law.
(g) Without derogating from any of the above representations, the Company’s and its Subsidiaries’ liability towards their employees regarding severance pay, accrued vacation and contributions to all Foreign Employee Plans are no investigationsfully funded or if not required by any source to be funded are accrued on the Company’s or Subsidiaries’ (as relevant) financial statements as of the date of such financial statements in accordance with GAAP. The Section 14 Arrangement was properly applied in accordance with the terms of the general permit issued by the Israeli Labor Minister regarding all former and current employees of the Company or its Subsidiaries who reside in Israel based on their full salaries and from their commencement date of employment.
(h) The Company and its Subsidiaries have made commercially reasonable efforts to comply with all applicable guidance published by a Governmental Authority, administrative proceedingsconcerning workplace and employee health and safety practices related to the coronavirus (COVID-19) pandemic. Since January 1, charges 2020, as related to COVID-19, neither the Company nor any of its Subsidiaries has (i) taken any materially adverse action with respect to any employee of the Company or formal complaints its Subsidiaries, including implementing workforce reductions, terminations, furloughs or material changes to compensation, benefits or working schedules, or (ii) applied for or received loans or payments under the CARES Act or any similar program, or claimed any tax credits or deferred any Taxes thereunder. As of discrimination (including discrimination based upon sexthe date hereof, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending neither the Company nor any of its Subsidiaries has received any written or, to the knowledge Company’s knowledge, oral complaints or concerns (i) from employees regarding leaves of absences, paid sick time, or similar matters related to COVID-19, (ii) regarding the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company’s or any of its Subsidiaries. No discrimination’ reporting, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending orfailure to report, to employees, contractors, customers, vendors or the knowledge public, the presence of employees or contractors who have tested positive for, or exhibited symptoms of, COVID-19, or other potential means of exposure to COVID-19 or (iii) alleging the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866failed to provide a safe working environment, 1877, 1964 appropriate equipment or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination accommodation in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating relation to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesCOVID-19.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Merger Agreement (DSP Group Inc /De/), Merger Agreement (DSP Group Inc /De/)
Labor and Employment Matters. (a) Section 3.16(a) of On and after the Seller Disclosure Letter contains a true Closing Date, all hiring and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters staffing decisions in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) use of the Seller Disclosure Letter, all officers Assets purchased by Buyer shall be within Buyer’s sole and exclusive discretion and control. Those employees of Seller to whom Buyer shall not offer employment or who decline the Seller and employment offer of Buyer shall remain in the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any employ of its Subsidiaries is a party toSeller, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, at Seller’s option, may be terminated by Seller in accordance with its personnel policies and at its expense. Seller agrees that to the knowledge of extent the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or foregoing triggers any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of notice obligations under the Worker Adjustment and Retraining Notification Act ("WARN"), Seller shall be responsible for providing, and shall be liable to any persons or entities who do not receive, any required notices. Employees of Seller who become employees of Buyer by accepting Buyer’s offer of employment shall be subject to all rules, regulations, requirements and policies applicable to new hires of Buyer.
(b) Act Buyer shall not assume any employment contracts of whatever nature or would otherwise trigger notice requirements any obligations arising out of any employment contracts, express or liability under any state implied, oral or local plant closing notice law. No agreementwritten, arbitration individual or court decision or governmental order in any way limits or restricts collective, between Seller and any of the Seller’s employees. Nor shall Buyer assume any obligations arising out of any pension benefit, employee welfare benefit, bonus, deferred compensation, stock purchase, stock option, severance, fringe benefit, medical insurance, life insurance or similar plan, policy or program of Seller, any whether or not covered or excluded from coverage under ERISA. Seller shall be solely responsible for complying with all of its Subsidiaries obligations, if any, to its employees, including compliance with the provisions of ERISA, the Multi-Employer Pension Plan Amendments Act of 1980 (MPPAA), and WARN.
(c) All offers of employment by Buyer to any employee of Seller shall be conditioned on such employee terminating his or her employment with Seller on or prior to the Purchaser from relocating Closing Date and waiving, to the maximum extent permitted by applicable law, all of his or closing her rights to make any of the operations of the Seller claim or demand on Buyer or any of its SubsidiariesBuyer’s affiliates in respect of (i) any employment contracts of whatever nature or any obligations arising out of any employment contracts, express or implied, oral or written, individual or collective, between Seller and such employee and (ii) any obligations arising out of any pension benefit, employee welfare benefit, bonus, deferred compensation, stock purchase, stock option, severance, fringe benefit, medical insurance, life insurance or similar plan, policy or program of Seller, whether or not covered or excluded from coverage under ERISA.
(d) The On and after the Closing Date, those employees of Seller who accept the employment offer of Buyer shall be eligible for participation under all of Buyer’s benefit plans and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies programs that are currently in force, or has accrued an adequate liability offered to Buyer’s current employees. Such employees shall receive credit for such obligations, including, without limitation, adequate accruals their years of continuous service with respect to accrued but unreported claims Seller for purposes of determining participation and retroactive insurance premiumsbenefit levels under all of Buyer’s paid time off policies and benefits plans and programs.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Rainmaker Systems Inc), Asset Purchase Agreement (Rainmaker Systems Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller Neither ARPI nor any ARPI Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement, contract or other agreement or other contracts, arrangements, agreements or understandings understanding with a labor union or labor organization that was certified by union organization, nor are there any negotiations or discussions currently pending or occurring between ARPI, or any of the National Labor Relations Board ("NLRB")ARPI Subsidiaries, and any union or employee association regarding any collective bargaining agreement or any other work rules or polices. There is no existing, unfair labor practice or labor arbitration proceeding pending or, to the knowledge Knowledge of ARPI, threatened against ARPI or any of the SellerARPI Subsidiaries relating to their business and neither ARPI nor any ARPI Subsidiary has experienced any strike, threatened work stoppage, lockout, shutdown, labor dispute or other concerted interference with normal operations during the past three years. To ARPI’s Knowledge, (i) unfair labor practice charge there are no organizational efforts with respect to the formation of a collective bargaining unit presently being made or complaintthreatened involving employees of ARPI or any of the ARPI Subsidiaries (ii) nor have there been any such organizational efforts over the past three years.
(b) Except as set forth in Section 4.14(b) of the ARPI Disclosure Letter, labor disputethere are no proceedings pending or, labor arbitration proceeding to the Knowledge of ARPI, threatened against ARPI or any of the ARPI Subsidiaries in any forum by or on behalf of any present or former employee of ARPI or any of the ARPI Subsidiaries, any applicant for employment or classes of the foregoing alleging unpaid or overdue wages or compensation due, breach of any express or implied employment contract, violation of any law or regulation governing employment or the termination thereof, or any other matter before discriminatory, wrongful or tortious conduct on the NLRB or any other comparable state agency against or involving the Seller or part of ARPI of any of its Subsidiariesthe ARPI Subsidiaries in connection with the employment relationship that, (ii) activity individually or proceeding by a labor union in the aggregate, has had or representative thereof would reasonably be expected to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employeeshave an ARPI Material Adverse Effect.
(c) Neither Each individual who renders service to ARPI or any ARPI Subsidiary who is classified by ARPI or such ARPI Subsidiary, as applicable, as having the Seller nor status of an independent contractor or other non-employee status for any purpose (including for purposes of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment taxation and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability tax reporting and under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order ARPI Employee Benefit Plans) is properly so classified and treated in any way limits or restricts any accordance with applicable Law and for purposes of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesall ARPI Employee Benefit Plans and perquisites.
(d) The Seller Each of ARPI and its the ARPI Subsidiaries are is in compliance in all material respects with all applicable Laws and all applicable contracts and policies relating to labor and labor practices, employment and the payment of wages and benefits. There are noemployment practices, wages, hours, and terms and conditions of employment, including the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge obligations of the SellerWARN Act, threatened before and all other notification and bargaining obligations arising under any collective bargaining agreement, by applicable Law or otherwise. Except as set forth in Section 4.14(d) of the Department of Labor ARPI Disclosure Letter, neither ARPI nor any ARPI Subsidiary has implemented, conducted or experienced a “plant closing” or “mass layoff” as defined in the WARN Act (or any federal, state similar group personnel action requiring advance notice under the WARN Act) affecting any site of employment or administrative agency one or court against more facilities or involving the Seller operating units within any site of employment or facility of ARPI or any of its SubsidiariesARPI Subsidiary.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Merger Agreement (American Homes 4 Rent), Merger Agreement (American Residential Properties, Inc.)
Labor and Employment Matters. (a) Section 3.16(a4.18(a) of the Seller Company Disclosure Letter contains Schedule sets forth a true complete and complete accurate list of (a) all each current employee of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the any Company Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and hereof (the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees“Company Employees”), together with an appropriate notation next each such Company Employee’s job title, exempt/non-exempt status, current year’s base compensation and indicating whether such Company Employees are active or on a leave of absence. The Company and all Company Subsidiaries have paid or properly accrued in the ordinary course of business all compensation due to the name of any officer each Company Employee, including all vacations or other employee on such list who is subject to any written employment agreement vacation pay, holidays or any other written term sheet holiday pay, sick days or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractorsick pay, and bonuses and commissions. Except as provided by or set forth on Section 3.16(ain a Company Employee Plan, (i) there are no other forms of compensation payable to any such Company Employee; (ii) the Seller Disclosure Letter, employment of all Company Employees (whether or not pursuant to a written employment agreement) is terminable at will; (iii) neither the Seller Company nor any Company Subsidiary is a party to any employment agreement or bound by independent contract for services, written or oral, with any material contractsPerson; and (iv) upon termination of the employment of any of the Company Employees, consulting agreements or termination or severance agreements in respect the Company and Company Subsidiaries will not be liable to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller Company Employees for “severance pay” or any Subsidiary other termination related payments. No Company Employee at the level of Senior Vice President or above has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments given notice that he or she intends to any such officers, employees terminate his or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection her employment with the transactions contemplated by this Agreement Company or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofCompany Subsidiary.
(b) The Company and each Company Subsidiary are and have been in compliance in all material respects with all Applicable Law respecting employment and employment practices, including, but not limited to, all Applicable Laws relating to terms and conditions of employment, occupational safety and health and workers’ compensation, employee classification and wages and hours (including payment of overtime), immigration and work eligibility, whistleblower, discrimination, harassment, reasonable accommodation, retaliation, equal pay, equal employment opportunity, workers’ compensation, privacy, leaves of absence, plant closings and layoffs, classification of independent contractors, withholding and payment of employment taxes, unemployment insurance, and continuation coverage with respect to group health plans. Neither the Seller Company nor any Company Subsidiary is engaged in any unfair labor practice, as defined in the National Labor Relations Act or other Applicable Laws. During the past three (3) years, neither the Company nor any Company Subsidiary has engaged in any plant closing or employee layoff activities that would violate or give rise to an obligation to provide any notice required under the federal Worker Adjustment Retraining and Notification Act (the “WARN Act”) or any similar state Applicable Law and they have no plans to undertake any actions prior to or on the date of its Subsidiaries Closing that would require the providing of any such notice.
(c) Except as would not have a Company Material Adverse Effect, there are no active, pending or, to the Company’s Knowledge, threatened administrative or judicial complaints, charges, investigations or proceedings against or affecting the Company or any Company Subsidiary before any Governmental Authority in connection with the employment of any former or current Company Employee, applicant for employment, or consultant or independent contractor.
(d) Neither the Company nor any Company Subsidiary is a party to, or otherwise bound by, any collective bargaining agreement that pertains to any Company Employee. Neither the Company nor any Company Subsidiary is subject to any demand, petition or other contracts, arrangements, agreements representation proceeding seeking recognition or understandings with a certification of any labor union or other labor organization as the exclusive bargaining representative of any employees of the Company or any Company Subsidiary. To the Company’s Knowledge, there are no pending organizing activities, demand for recognition or question concerning representation by any labor union or other collective bargaining representative that was certified by could affect the National Labor Relations Board ("NLRB")Company or any Company Subsidiary. There is no existing, pending or, to the knowledge of the SellerCompany’s Knowledge, threatened (i) unfair labor practice charge or complaintthreatened, labor disputestrike, labor arbitration proceeding slowdown, lockout or work stoppage involving the Company or any other matter before the NLRB Company Subsidiary or Company Employees, nor have there been any other comparable state agency against or involving the Seller or any of its Subsidiariessuch labor strikes, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage lockouts or work interruption with respect to such employees.
stoppages in the last five (c5) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesyears.
(e) The Seller and each To the Company’s Knowledge, in the last five years, no allegations of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge sexual harassment have been made against (i) any current executive officer of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller Company or any of its Subsidiaries.
the Company Subsidiaries or (fii) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge any current employee of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful the Company Subsidiaries at the level of Senior Vice President or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariesabove.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NCR Corp), Merger Agreement (JetPay Corp)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true The Company and complete list of (a) each Company Subsidiary are in material compliance with all of the officers of the Seller Applicable Laws respecting employment and the Subsidiariesemployment practices, specifying their position, age, length of service terms and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letteremployment, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officeroccupational safety and health and workers’ compensation, employee or former employeeclassification and wages and hours, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending orincluding, to the knowledge extent applicable, Title VII of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights ActsAct of 1964, as amended, the Equal Pay ActAct of 1967, as amended, the Age Discrimination in Employment ActAct of 1967, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and state anti-discrimination laws. As of the date of this Agreement, (i) there are no material charges, complaints, audits or investigations pending or scheduled by any applicable whistleblower statutesGovernmental Authority pertaining to the employment practices of the Company or, to the Company’s Knowledge, otherwise threatened against it, and (ii) under no written complaints relating to employment practices of the Company have been submitted to the Company or, to the Company’s Knowledge, made to any state Governmental Authority. Neither the Company nor any of the Company Subsidiaries has any material Liability with respect to any misclassification of any person as an independent contractor rather than as an “employee,” or federal law with respect to any Company employee leased from another employer.
(b) The Company and each of the Company Subsidiaries, with respect to each Company Employee, if applicable: (i) has withheld and reported all amounts required by Applicable Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to such employees, consultants, independent contractors and directors, (ii) is not liable for any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of 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 such employees, consultants, independent contractors and directors (other than routine payments to be made in the normal course of business and consistent with past practice).
(c) Neither the Company nor any Company Subsidiary is a party to, or otherwise bound by, any collective bargaining agreement, Contract or other agreement or understanding with a labor union, organization, group or association, works council or other employee representative body. Neither the Company nor any Company Subsidiary is subject to any charge, demand, petition or representation Proceeding seeking to compel, require or demand it to bargain with any labor union, organization, group or association, works council or other employee representative body. There is no pending or, to the knowledge of Company’s Knowledge, threatened, labor strike, lockout, slowdown or work stoppage involving the Seller, threatened against the Seller Company or any of its Subsidiaries.
(g) If the Seller Company Subsidiary or their employees, nor have there been any of its Subsidiaries is a federalsuch labor strikes, state lockouts, slowdowns or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 work stoppages in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumslast three (3) years.
Appears in 2 contracts
Samples: Merger Agreement (Endurance International Group Holdings, Inc.), Merger Agreement (Constant Contact, Inc.)
Labor and Employment Matters. (a) Section 3.16(a3.13(a) of the Seller Company Disclosure Letter contains sets forth a true complete and complete correct list of (a) all employees of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Company Subsidiaries as of the date hereof, specifying their annual salarystating each such employee’s: (i) name, hourly wages, age, (ii) position, (iii) employing entity, (iv) hire date, (v) work location (city, state, country), (vi) current annual base compensation rate, (vii) commission, bonus or other incentive-based compensation, (viii) full-time or part-time status, length (ix) overtime exempt or non-exempt status, (x) active or leave status (and, if on leave, the nature of service the leave and the allocation expected return date), (xi) type of annual salaryemployer sponsored visa, bonus if applicable; and other amounts paid and other benefits provided to each of them, respectively, consulting (xii) employment status (whether such person is or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively employed “at work (as defined in Section 5.12(awill”)) on the date hereof.
(b) Neither Section 3.13(b) of the Seller nor Company Disclosure Letter sets forth a complete and correct list of all independent contractors of the Company and the Company Subsidiaries as of the date hereof, stating each such independent contractor’s: (i) name; (ii) entity engaging the independent contractor; (iii) date of commencement of service and anticipated termination date, if applicable; (iv) work location (city, state, country); (v) material terms of engagement, including fees or other remuneration; and (vi) if there is a written contract for the work to be performed. All individuals who are performing, and for the three (3) year period preceding the date hereof have performed, services for the Company or any of its the Company Subsidiaries while classified as independent contractors have been properly so classified for all purposes.
(c) No employee of the Company or any of the Company Subsidiaries is a party to, or bound by, represented by any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by other employee association in respect of his/her employment with the National Labor Relations Board ("NLRB")Company or any of the Company Subsidiaries. There is no existingcollective bargaining or other labor-related agreement or arrangement in force, or currently being negotiated, with respect to the employees of the Company or any of the Company Subsidiaries, and there are no current or, to the Knowledge of the Company, threatened attempts to organize or establish any labor union or other employee association with respect to the employees of the Company or any of the Company Subsidiaries, nor have there been any such attempts since January 1, 2020. There is no, and has not been since January 1, 2020, a strike, lockout, slow down or work stoppage with respect to any employees of the Company or any of the Company Subsidiaries nor, to the Knowledge of the Company, has any such action been threatened since January 1, 2020. There is no, and has not been since January 1, 2020, an unfair labor practice complaint, material labor dispute or labor arbitration proceeding pending or, to the knowledge Knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiariesthe Company Subsidiaries since January 1, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries2020.
(d) The Seller Company and its each of the Company Subsidiaries are is in material compliance with all applicable Laws relating to employment and the payment labor matters, including relating to wages, hours of wages work, vacation pay, pay equity, overtime pay, occupational health and safety, child labor, worker’s compensation, disability rights and benefits. There are no, employee leave issues, unemployment insurance, anti-discrimination and anti-harassment, equal opportunity, plant closures and layoffs, affirmative action, labor relations, immigration, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints any other terms and conditions of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesemployment.
(e) The Seller Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of the Company Subsidiaries has received written notice since January 1, 2020 of the intent of any Governmental Entity responsible for the enforcement of employment or labor matters, including occupational health and each safety, workplace safety and workers compensation insurance Laws, to conduct an investigation of its the Company or any of the Company Subsidiaries and no such investigation is in progress or, to the Knowledge of the Company, threatened. There are in compliance with all immigration laws no outstanding Actions relating to employment or labor matters, there have been no such Actions since January 1, 2020 and, to the knowledge Knowledge of the SellerCompany, there no such Actions are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariescurrently threatened.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to Neither the knowledge Company nor any of the SellerCompany Subsidiaries is a party to a settlement agreement with a current or former director, threatened before officer, employee or independent contractor of the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company or any of its Subsidiaries. No discrimination, the Company Subsidiaries that involves allegations relating to sexual harassment, retaliation and/or wrongful sexual misconduct or tortious conduct claim is pending or, to the knowledge discrimination by either an officer or employee of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, Company Subsidiaries. As of the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplacedate hereof, and since January 1, 2020, no wrongful discharge, libel, slander, invasion allegations of privacy sexual harassment or other claim (including but not limited to violations sexual misconduct have been made against any officer or employee of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller Company or any of its the Company Subsidiaries.
(g) If To the Seller Knowledge of the Company, no employee of the Company or any of its the Company Subsidiaries is a federalin any respect in violation of any term of any employment agreement, state nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions other restrictive covenant agreement or debarment proceedings is pending or, other obligation to the knowledge Company, any of the Seller, has been threatened against the Seller Company Subsidiaries or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressa third party.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to Neither the knowledge Company nor any of the SellerCompany Subsidiaries currently employ any employee in Canada, threatened before and neither the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or Company nor any of its Subsidiariesthe Company Subsidiaries has employed any employee in Canada since January 1, 2021.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Business Combination Agreement (GX Acquisition Corp. II), Business Combination Agreement (Niocorp Developments LTD)
Labor and Employment Matters. (a) Section 3.16(a) of Neither the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller Company nor any Subsidiary of its Subsidiaries is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings similar agreement with a labor union union, works council or other labor organization that was certified by the National Labor Relations Board ("NLRB")organization. There is no existing(i) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity to the knowledge of the Company, certification or representation proceeding or other organizing effort by a labor union or representative thereof seeking to organize represent any employees of the Seller Company or any of its Subsidiaries, or (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) pending lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the SellerCompany, threatened before threat thereof by or with respect to such employees, in each case, that has had or would reasonably be expected to have, individually or in the Department of Labor or any federalaggregate, state or administrative agency or court against or involving a Material Adverse Effect on the Seller or any of its SubsidiariesCompany.
(eb) The Seller Each of the Company and each of its Subsidiaries are is in compliance with all immigration laws relating Applicable Laws respecting employment and employment practices, including terms and conditions of employment, discrimination in employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages and hours and occupational safety and health, except where the failure to employment andso comply has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) Since January 1, 2021 through the date of this Agreement, (i) to the knowledge of the SellerCompany, there are no citations, investigations, administrative proceedings allegations of sexual or formal complaints of violations other unlawful harassment or discrimination have been made against any current or former employee of the immigration laws pending Company or threatened before its Subsidiaries at the Immigration and Naturalization Service level of Senior Vice President or any federalabove in connection with their employment, state or administrative agency or court against or involving (ii) neither the Seller or Company nor any of its Subsidiaries.
Subsidiaries has entered into any settlement agreement related to allegations of sexual or other unlawful harassment or discrimination by any current or former employee of the Company or its Subsidiaries at the level of Senior Vice President or above, and (fiii) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the SellerCompany, threatened before the Equal Employment Opportunity Commission there have been no, and there are no proceedings currently pending or threatened, related to any federal, state allegations of sexual or local agency other unlawful harassment or court against discrimination by any current or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge former employee of the Seller, threatened against the Seller Company or any of its Subsidiaries under at the 1866, 1877, 1964 level of Senior Vice President or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination above in Employment Act, as amended, the Americans connection with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariestheir employment.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Merger Agreement (Juniper Networks Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as As of the date hereofof this Agreement, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of no union represents any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and Company or any of its Subsidiaries. To the Subsidiaries are actively at work (as defined in Section 5.12(a)) on Knowledge of the Company, no union is attempting, or during the three years prior to the date hereofof this Agreement has attempted, to organize or otherwise become the bargaining representative for any employees of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is the subject of any material proceeding asserting that the Company or a Subsidiary has committed an unfair labor practice or otherwise seeking to compel it to bargain with any labor union or other labor organization.
(b) Neither Section 3.16(b) of the Seller nor Company Disclosure Letter sets forth a complete list of (i) all written employment agreements to which the Company or any of its Subsidiaries is a party to(other than employment agreements with Persons who are not officers or directors of the Company or any of its Subsidiaries which (A) call for a base salary of no more than $150,000 per year and have a term of no more than two years or (B) are terminable on no more than 30 days’ advance notice without payment of a sum exceeding $150,000 (“Material Employment Agreements”)) and (ii) all material employee benefit, severance, change of control and retention plans, programs and arrangements maintained or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified sponsored by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to Company or any of its Subsidiaries for the knowledge benefit of any employees or former employees of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof as to organize any employees of which the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller Company or any of its Subsidiaries otherwise is an employer (such employee benefit plans, the “Benefit Plans”). Except as would not, in aggregate, reasonably be expected to have a Material Adverse Effect on the Company, (x) each employee benefit plan set forth on Section 3.16(b) of the Company Disclosure Letter which is required to be registered with, or approved by, a governmental agency, has been so registered with or approved by that governmental agency (ivor has received or is otherwise covered by a favorable determination or opinion letter from the Internal Revenue Service), and (y) lockouteach employee benefit plan set forth on Section 3.16(b) of the Company Disclosure Letter has been maintained in all material respects in accordance with its terms and any applicable provisions of Law (including, strikeif applicable, organized slowdown, work stoppage or work interruption with respect to such employeesthe Employee Retirement Income Security Act of 1974 (“ERISA”) and the Code).
(c) Neither No plan set forth, or which should be set forth, on Section 3.16(b) of the Seller Company Disclosure Letter is a “defined benefit plan” (within the meaning of Section 3(35) of ERISA) as to which there is an unfunded benefit liability, and neither the Company nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" direct or "Plant Closing" within indirect contingent liability with respect to any defined benefit plan or any “multiemployer plan” (as defined in Section 3(37) of ERISA), and the meaning Company and its subsidiaries have no obligation to provide post-employment welfare benefits except to the extent required by Section 4980B of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its SubsidiariesCode.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and Neither the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or Company nor any of its Subsidiariessubsidiaries has any obligation to “gross up” any tax incurred by any Person pursuant to Section 409A, 457A or 4999 of the Code.
(e) The Seller and each There are no Contracts, agreements or other arrangements which would reasonably be expected to result in the payment by the Company or by any of its Subsidiaries are of an “excess parachute payment”, as that term is used in compliance with all immigration laws relating to employment and, to the knowledge Section 280G of the SellerCode, there are no citations, investigations, administrative proceedings or formal complaints of violations as a result of the immigration laws pending Mergers, or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving payment by the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but compensation which will not limited to violations be deductible because of Section 162(m) of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesCode.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Merger Agreement (WCI Communities, Inc.), Merger Agreement (Lennar Corp /New/)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letterdisclosed in SECTION 3.12 OF THE COMPANY DISCLOSURE LETTER, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements Contract or understandings understanding with a labor union or labor organization that was certified by or other representative of any of the National Labor Relations Board employees of the Company or any of its Subsidiaries. Except for such matters which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, there is no: ("NLRB"). There is no existingi) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, Subsidiaries relating to their business; (ii) to the knowledge of the Company, activity or proceeding by a labor union or representative thereof to organize any employees of the Seller Company or any of its Subsidiaries, ; or (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockoutlockouts, strikestrikes, organized slowdownslowdowns, work stoppage stoppages or work interruption threats thereof by or with respect to such employeesemployees and during the last three (3) years there has not been any such action.
(cb) Neither During the Seller last five (5) years, neither the Company nor any of its Subsidiaries has taken any action that would constitute effectuated a "Mass Layoffplant closing" or a "Plant Closingmass layoff" within the meaning of (as such terms are defined in the Worker Adjustment and Retraining Notification Act (the "WARNWARN ACT") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law)). No agreement, arbitration or court decision or governmental order in any way limits or restricts any of Neither the Seller, Company nor any of its Subsidiaries has been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any state, local or foreign Law or regulation which is similar to the Purchaser from relocating or closing any WARN Act. None of the operations employees of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, has suffered an "employment loss" (as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination defined in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim WARN Act) during the ninety (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes90) under any state or federal law is pending or, day period prior to the knowledge date of the Seller, threatened against the Seller or any of its Subsidiariesthis Agreement.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Defense Technologies Inc), Merger Agreement (Integrated Defense Technologies Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 2.15(a) of the Seller Disclosure LetterCompany Schedule of Exceptions, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors Company (other than with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(aExtension Orders) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or otherwise bound by, any collective bargaining agreement agreement, contract, or other contracts, arrangements, agreements or understandings written agreement with a labor union or labor organization that was certified organization. To the Knowledge of the Company, neither the Company (other than with respect to Extension Orders) nor any of its Subsidiaries is subject to, and during the past four (4) years there has not been, any charge, demand, petition, organizational campaign, or representation proceeding seeking to compel, require, or demand it to bargain with any labor union or labor organization, including any threatened to be brought or filed, with the Israeli Labor Court.
(b) Except as set forth in Section 2.15(b) of the Company Schedule of Exceptions and except as would not, individually or in the aggregate, be material, (i) to the Knowledge of the Company, the Company or any of its Subsidiaries are in compliance in all material respects, and has been for the past four (4) years, with all applicable Laws (including Labor and Employment Laws) respecting labor, employment, fair employment practices, work safety and health, terms and conditions of employment, immigration, and wages and hours and equal pay, (ii) neither the Company or any of its Subsidiaries is delinquent in any payments to any employee or to any independent contractors, consultants, temporary employees, leased employees or other individual agents who personally provide services to the Company during most of such individual agent’s working time, employed or used with respect to the operation of the Company Business and classified by the National Labor Relations Board Company or any of its Subsidiaries as other than an employee or compensated other than through wages paid by the Company or any of its Subsidiaries through its respective payroll department ("NLRB"“Company Contingent Workers”). There is , for any compensation due with respect to any services performed for it to the date of this Agreement or amounts required to be reimbursed to such employees or Company Contingent Workers; (iii) there are, and for the past four (4) years there have been, no existingoutstanding grievances, complaints or charges with respect to employment or labor matters pending or, to the knowledge Knowledge of the SellerCompany, threatened (i) against the Company or any of its Subsidiaries in any judicial, regulatory or administrative forum, under any private dispute resolution procedure, including, without limitation, any claim relating to unfair labor practice charge practices, unlawful termination, employment discrimination, harassment, retaliation, unpaid wages or complaintsocial benefits, labor dispute, labor arbitration proceeding or equal pay; (iv) none of the employment policies or practices of the Company or any other matter before of its Subsidiaries is currently being, or has been in the NLRB past four (4) years, audited or investigated, or to the Knowledge of the Company, subject to imminent audit or investigation by any Governmental Authority; (v) none of the Company or any of its Subsidiaries is, or within the last four (4) years has been, subject to any Order by any Governmental Authority or private settlement contract in respect of any labor or employment matters; (vi) the Company and its Subsidiaries have properly classified their respective U.S. employees as exempt or non-exempt under the Fair Labor Standards Act, as amended, and its state law equivalents, including the California Labor Code, and all other comparable state agency relevant Laws; and (vii) there are no pending or, to the Knowledge of the Company, threatened or reasonably anticipated claims or actions against the Company or involving its Subsidiaries under any workers’ compensation policy or long-term disability policy. None of the Seller Company or any of its Subsidiaries has experienced a “plant closing,” “business closing,” or “mass layoff” as defined in the federal Worker Adjustment and Retraining Notification Act of 1988 or similar state, local and foreign laws relating to plant closings, relocations, mass layoffs or employment losses (the “WARN Act”), and, during the ninety (90)-day period preceding the date of this Agreement, no employee has suffered an “employment loss,” as defined in the WARN Act, with respect to the Company or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of . Except for Extension Orders the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller Company nor any of its Subsidiaries has taken is a party to, or otherwise bound by, any action that would constitute a "Mass Layoff" consent decree with, or "Plant Closing" within the meaning citation by, any Governmental Authority relating to employees or employment practices. All employees are employed on an at-will basis (insofar as such employment practice is legally recognized under applicable Law) unless otherwise set forth in Section 2.15(b) of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice lawCompany Schedule of Exceptions. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller Company and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge requirements of the Seller, threatened before Immigration Reform Control Act of 1986 and have a completed and accurate copy of U.S. Citizenship and Immigration Services Form I-9 for each employee of the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of Company and its Subsidiaries.
(ec) The Seller Section 2.15(c) of the Company Schedule of Exceptions contains a complete and each accurate list of all employees of the Company and its Subsidiaries are as of the date of this Agreement, setting forth for each employee his or her position or title, the annual base salary, date of hire, business location, bonus, retention, overtime payment arrangement, any special termination grant that is beyond the statutory severance pay options or any other kind of equity based compensation and other incentive or contingent compensation amounts to be due and payable to such employee at the Closing and, with respect to employees of the Company who work in compliance with all immigration laws relating Israel (“Israeli Employees”), a description of social benefits to employment which the Israeli Employee is currently entitled, including, if applicable, managers insurance, pension funds and education funds (kranot hishtalmut), sick days to which such Israeli Employee is entitled and which have accrued and the aggregate Dollar amounts thereof, the vacation days to which each such Israeli Employee is entitled and accrued and unpaid vacation (represented both in terms of the number of days as well as the Dollar value), recuperation pay entitlement and accrual, length of notice period required in order to terminate each such Israeli Employee's employment, transportation expenses, (e.g., transportation pay, car, leased car arrangement, car maintenance payments), mobile phones and other benefits in kind, whether each such Israeli Employee is subject to Section 14 of the Severance Pay Law (defined below) (and, to the knowledge extent such Israeli Employee is subject to such Section 14, an indication of whether such arrangement has been applied to such Israeli Employee from the commencement date of his employment and on the basis of his or her entire salary, and if not – specify the start date of Section 14 arrangement and the salary base). Section 2.15(c) of the SellerCompany Schedule of Exceptions also contains a complete and accurate list of all current Company Contingent Workers, there are no citationsshowing for each Company Contingent Worker such individual’s role in the Company Business, investigationsdate of engagement, administrative proceedings fee or formal complaints compensation arrangements, options or any other kind of violations equity based compensation, bonuses, benefits of any kind, and any other incentive or contingent compensation amounts to be due and payable at the Closing.
(d) Except as set forth in Section 2.15(d) of the immigration laws pending Company Schedule of Exceptions, no employee of the Company is on a leave of absence or threatened before has given notice of his or her intention to go on a leave of absence. No employee or consultant has given notice of his/her resignation or has advised the Immigration Company of his or her intention to terminate such Person’s relationship or status as an employee or consultant of the Company for any reason, including because of the consummation of the transactions contemplated by this Agreement and Naturalization Service the Company has not given, and has no plans or intentions as of the date hereof to terminate any federalCompany employee or consultant.
(e) Except as set forth in Section 2.15(e) of the Company Schedule of Exceptions, state to the Knowledge of the Company, during the year prior to the date hereof (i) no allegations of discrimination, harassment, or administrative agency hostile work environment based on sex have been made against (A) any officer or court against director of the Company, (B) any employee of the Company or involving its Subsidiaries at the Seller level of Vice President or above, or (C) any employee of its Subsidiariesthe Company who, directly or indirectly, supervises at least three (3) other employees; and (ii) the Company has not entered into any settlement related to allegations of discrimination, harassment, or hostile work environment by an employee, director, officer, or Company Contingent Worker.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran statusExcept as set forth in Section 2.15(f) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any Schedule of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights ActsExceptions, the Equal Pay ActCompany does not engage minors, the Age Discrimination students, interns or foreign employees in Employment Actany jurisdiction except with proper approval, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariesif applicable.
(g) If Without limiting the Seller or generality of any of its Subsidiaries is a federalother representation herein, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge except as set forth in Section 2.15(g) of the SellerCompany Schedule of Exceptions, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, respect to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
each Israeli Employee: (i) No workers' compensation or retaliation claim the employment of such Israeli Employee is pending against terminable by the Seller or any of its Subsidiaries in excess of $50,000 Company upon no more than 30 days prior written notice under the termination notice provisions included in the aggregate applicable employment Contract with such Israeli Employee or applicable Labor and Employment Law; (ii) all obligations of the Seller maintains adequate insurance Company to provide statutory severance pay to such Israeli Employee are in accordance with Section 14 of the Israeli Severance Pay Law (5723-1963) (the “Severance Pay Law”) and accrued vacation, and contributions to all pension plans are fully funded (except for funding to be made in the ordinary course for the working month during which this Agreement was executed, or the Closing occurs, as applicable) or, if not required by the applicable Law to be fully funded are accrued on the Company Financial Statements, and all Israeli Employees have been subject to the provisions of Section 14 of the Severance Pay Law with respect to workers' compensation claims pursuant to insurance policies that are currently their entire salary, as defined under the Severance Pay Law from the date of commencement of their employment with the Company, and the Company has been in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals full compliance with the technical and material requirements of the Section 14 arrangement with respect to severance pay with respect to the full amount of such salary for which severance pay is due under the Severance Pay Law; (iii) all obligations of the Company to make contributions towards pension are fully funded in accordance with the provision of the applicable Law (except for funding to be made in the ordinary course for the working month during which this Agreement was executed, or the Closing occurs, as applicable); (iv) the Company’s employees’ unused vacation days are accrued but unreported claims on the Company Financial Statements; (iv) no Israeli Employee’s employment by the Company, which requires any special license, permit or other authorization for the engagement or for the termination of such employment by any Governmental Authority is carried out without such special license, permit or other authorization; (v) there are no unwritten policies, practices or customs of the Company that entitle any Israeli Employee to benefits in addition to what such Israeli Employee is entitled to by applicable Law or under the terms of such Israeli Employee’s employment contract (including unwritten customs or practices concerning bonuses, the payment of statutory severance pay even when not required under applicable Law, etc.); (vi) all amounts that the Company or a Subsidiary of it that is an Israeli entity is legally or contractually required either (A) to deduct from such Israeli Employee’s salary or to transfer to such Israeli Employee’s pension or provident, life insurance, incapacity insurance, advance study fund (Keren Hishtalmut) or other similar funds or (B) to withhold from such Israeli Employee’s salary and retroactive insurance premiumsbenefits and to pay to any Israeli Taxing Authority as required by applicable Israeli Tax Law, have, in each case, been duly deducted, transferred, withheld and paid, and the Company has no outstanding obligation to make any such deduction, transfer, withholding or payment (except for deduction, transfer, withholding and payments to be made in the ordinary course after the date of this Agreement or after the Closing, as applicable, for the working month during which this Agreement was executed, or the Closing occurs, as applicable).
Appears in 2 contracts
Samples: Merger Agreement (Innovate Biopharmaceuticals, Inc.), Merger Agreement (Innovate Biopharmaceuticals, Inc.)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true XXX and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the its Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a neither party to, bound by or bound by, in the process of negotiating any collective bargaining agreement or other contractslabor-related agreement or arrangement with any labor union, arrangementstrade union, agreements labor organization or understandings other employee representative body and no employees of XXX or its Subsidiaries are represented by any labor union, labor organization or works council with respect to their employment with XXX or its Subsidiaries. To the Knowledge of XXX, there have been no labor union organizing activities with respect to any employees of XXX or its Subsidiaries.
(b) In the last three (3) years, none of XXX or any of its Subsidiaries has entered into a settlement agreement with a labor union current or labor organization that was certified former officer, employee or independent contractor of XXX or its Subsidiaries who made allegations of discrimination or sexual harassment by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened either
(i) unfair labor practice charge an officer of XXX or complaintits Subsidiaries or (ii) an employee of XXX or its Subsidiaries at the level of Director or above. To the Knowledge of XXX, labor disputein the last three (3) years, labor arbitration proceeding there have been no formal allegations of discrimination or sexual harassment made against (A) any officer of XXX or its Subsidiaries or (B) an employee of XXX or its Subsidiaries at the level of Director or above.
(c) To the Knowledge of XXX, no current employee of XXX or its Subsidiaries, who is at the level of Director or above, intends to terminate his or her employment with XXX or any other matter before of its Subsidiaries prior to the NLRB twelve (12) month anniversary of the Closing.
(d) Except as would not, individually or any other comparable state agency against in the aggregate, have a XXX Material Adverse Effect, each release of employment claims in favor of XXX and its Subsidiaries obtained from an employee of XXX or involving its Subsidiaries since December 31, 2018 is effective and binding to release all employment claims purported to be released therein by such employee, subject to applicable Law.
(e) Except as would not, individually or in the Seller aggregate, reasonably be expected to result in material Liability to XXX or any of its Subsidiaries, to the Knowledge of XXX, (iii) activity or proceeding by a labor union or representative thereof each individual who is currently providing services to organize any employees of the Seller XXX or any of its Subsidiaries, (iii) certification or decertification question relating who provided services to collective bargaining units at the premises of the Seller XXX or any of its Subsidiaries since December 31, 2018, as an independent contractor or (iv) lockout, strike, organized slowdown, work stoppage consultant is or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" was properly classified and properly treated as an independent contractor or "Plant Closing" within the meaning of the Worker Adjustment consultant by XXX and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
, (dii) The Seller and its Subsidiaries are in compliance with all applicable Laws relating each individual who is currently providing services to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller XXX or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAthrough a third-party service provider, or any other federal law relating who provided services to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller XXX or any of its Subsidiaries through a third-party service provider since December 31, 2018, is a federal, state not or local contractor obligated to develop and maintain was not an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge employee of the Seller, has been threatened against the Seller XXX or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.and
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Labor and Employment Matters. (a) Section 3.16(a3.18(a) of the Seller Company Disclosure Letter contains sets forth a true true, complete and complete correct list of (a) the name, job position and current annual base rate of salary of all employees of the officers Company and its Subsidiaries whose current annual base rate of salary is in excess of $100,000. To the knowledge of the Seller and the SubsidiariesCompany, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of no such employee has indicated an intention to resign or of the rendering of services by such independent contractorretire. Except as for obligations set forth on Section 3.16(a3.18(a) of the Seller Company Disclosure Letter, neither the Seller Company has accrued by adequate reserves on the Company Current Balance Sheet, in accordance with GAAP, all wages, salaries, bonuses, vacation pay and other direct, indirect and deferred compensation earned by, or accrued for the benefit of, all employees of the Company and its Subsidiaries. Parent has been supplied with true, complete and correct copies of all currently in effect written employment codes, procedures, policies and employee manuals. Except as described on Section 3.18(a) of the Company Disclosure Letter, there are no material non-written employee policies or procedures that are binding on the Company or its Subsidiaries or that would be binding on Parent, Merger Sub or the Surviving Corporation.
(b) Neither the Company nor any Subsidiary of its Subsidiaries is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement and there are no labor unions, works councils or other contractsorganizations representing, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending purporting to represent or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or attempting to represent any other matter before employee of the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries. In the three years prior to the Closing Date, (ii) activity there has not been any actual or proceeding by a labor union threatened strike, slowdown, picketing or representative thereof work stoppage with respect to organize any employees of the Seller Company or any of its Subsidiaries and, to the knowledge of the Company, no such activity is anticipated. There are no labor disputes currently subject to any grievance procedure, arbitration or litigation and there is no representation petition with any Governmental Entity pending, threatened or, to the knowledge of the Company, anticipated with respect to any employee of the Company or any of its Subsidiaries. In the three years prior to the Closing Date, (iii) certification or decertification question relating to collective bargaining units at neither the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller Company nor any of its Subsidiaries has taken engaged in any action unfair labor practices for which a claim has been made to the Company or any Governmental Entity and, to the knowledge of the Company, no facts exist that would constitute a "Mass Layoff" or "Plant Closing" could reasonably be expected to give rise to an unfair labor practice charge within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice lawNational Labor Relations Act. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller Company and its Subsidiaries are in compliance in all material respects with the Worker Adjustment and Retraining Xxxxxxxxxxxx Xxx, 00 X.X.X. §0000 et seq. and the regulations promulgated thereunder (the “WARN Act”) and any comparable state statute or regulation and, to the knowledge of the Company. the Company and its Subsidiaries are in compliance in all material respects with all applicable Laws relating to employment and the payment employment practices, workers’ compensation, terms and conditions of employment, worker safety, wages and benefitshours, civil rights, discrimination, immigration, and collective bargaining. There are nohave been no material claims of harassment, and the Seller has no reason to believe there would be anydiscrimination, citationsretaliatory act or similar actions against any employee, investigations, administrative proceedings officer or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge director of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller Company or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries at any time during the past three years, no such claims are in compliance with all immigration laws relating to employment pending or threatened, and, to the knowledge of the SellerCompany, there no such claim is anticipated. The Company and its Subsidiaries are not required to have, and do not have, any affirmative action plans or programs. To the Company’s knowledge, no citations, investigations, administrative proceedings or formal complaints of violations employees of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866are in any material respect in violation of any term of any employment contract, 1877non-disclosure agreement, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, non-competition agreement or any other federal law restrictive covenant to a former employer relating to employment or the right of any comparable state or local fair employment practices act regulating discrimination in such employee to be employed by the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller Company or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge because of the Seller, has been threatened against nature of the Seller business conducted or presently proposed to be conducted by the Company or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge use of the Seller, threatened before the Occupational Safety and Health Review Commission trade secrets or any federal, state or local agency or court against or involving the Seller or any proprietary information of its Subsidiariesothers.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 2 contracts
Samples: Merger Agreement (Tween Brands, Inc.), Merger Agreement (Dress Barn Inc)
Labor and Employment Matters. (a) Section 3.16(aSchedule 4.16 hereto includes (i) an accurate list of each collective bargaining or similar agreement and any work rules or practices agreed to with any labor organization or employee association applicable to employees of the Seller Disclosure Letter contains a true Acquired Entities or any of their respective subsidiaries; (ii) an accurate and complete list of each employment contract to which an Acquired Entity or a subsidiary thereof is a party or by which it is bound for personal services or employment which is not terminable on thirty (a30) all days' (or less) notice by such Acquired Entity or subsidiary thereof without penalty or obligation to make payments related to such termination; (iii) an accurate list of each plan, contract, arrangement or scheme under which fringe benefits (including, but not limited to, severance benefits, vacation plans or programs, sick leave plans or programs and related benefits) are afforded to employees of an Acquired Entity or subsidiary thereof, (iv) except to the officers extent provided pursuant to Section 4.16(c) below, an accurate and complete list of the Seller and the Subsidiarieseach non-represented employee with his or her name, specifying their positiontitle, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractorbrief job description. Except as set forth on Section 3.16(a) described in Schedule 4.16, no individual will accrue or receive additional payments, benefits, service or accelerated rights to payment of benefits as a result of the Seller Disclosure Letter, neither the Seller nor Transactions (either alone or combined with any Subsidiary is a party to other event or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(atransaction)) on the date hereof.
(b) Neither Except to the Seller nor extent set forth in Schedule 4.16 hereto, to the Knowledge of Seller, (i) there is no labor strike or lockout pending or affecting any Acquired Entity or subsidiary thereof and since the date of its Subsidiaries incorporation of each of the Acquired Entities and each of their respective subsidiaries, there has not been any such action; (ii) no union claims to represent the employees of any Acquired Entity or subsidiary thereof; (iii) none of the employees of an Acquired Entity or subsidiary thereof is a party to, or bound by, represented by any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by and neither the Seller, an Acquired Entity or any subsidiary thereof has any knowledge of any current union organizing activities among its employees, nor does any question concerning representation exist concerning such employees; (iv) each of the Acquired Entities and its subsidiaries has at all times been in material compliance with all obligations under the National Labor Relations Board ("NLRB"). There is no existingAct, pending oras amended, to the knowledge Title VII of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights ActsAct of 1964, the Equal Pay Actas amended, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family Occupational Safety and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion Health Act of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act1970, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a all other federal, state and local labor or local contractor obligated labor related laws applicable to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries persons employed in connection with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligationsCompany, including, without limitation, adequate accruals those laws, rules and regulations relating to wages, hours, health and safety, payment of Social Security withholding and other taxes, maintenance of workers' payment of Social Security withholding and other taxes, maintenance of workers' compensation insurance, labor and employment relations and employment discrimination, and is not engaged in any unfair labor practices as defined in the National Labor Relations Act or other applicable law, ordinance or regulation; (v) there is no unfair labor practice charge or complaint against any Acquired Entity or subsidiary thereof pending or threatened before the National Labor Relations Board or any similar state or foreign agency; (vi) there is no grievance arising out of any collective bargaining agreement or other grievance procedure; (vii) there is no charge with respect to accrued or relating to any Acquired Entity or subsidiary thereof pending before the Equal Employment Opportunity Commission or any other agency responsible for the prevention of unlawful employment practices; (viii) no Acquired Entity or subsidiary thereof has received notice of the intent of any federal, state, local or foreign agency responsible for the enforcement of labor or employment laws, including, but unreported claims not limited to, health and retroactive insurance premiumssafety laws, to conduct an investigation with respect to or relating to such Acquired Entity or subsidiary thereof and no such investigation is in progress nor has any such investigation been conducted during the last five years; (ix) there are no complaints, lawsuits or other proceedings pending or threatened in any forum by or on behalf of any present or former employee of any Acquired Entity or subsidiary thereof, any applicant for employment or classes of the foregoing alleging breach of any express or implied contract of employment, any law or regulation governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship; (x) since the enactment of the WARN Act, no Acquired Entity or subsidiary thereof has effectuated (A) 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 such Acquired Entity or subsidiary; or (B) a mass layoff (as defined in the WARN Act) affecting any of its sites of employment or facilities; nor has any Acquired Entity or subsidiary thereof 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; (xi) none of the employees of an Acquired Entity or subsidiary thereof has suffered an employment loss (as defined in the WARN Act) during the 180-day period prior to the date of this Agreement; (xii) each facility or location of each of the Acquired Entities and each subsidiary thereof has been operated as a single site of employment (as defined in the WARN Act) at all times since the enactment of the WARN Act; and (xiii) none of the Acquired Entities, their respective subsidiaries or any other party to any contract, agreement, plan, arrangement, scheme or written policy, rules or procedures set forth in Schedule 4.16 hereto is in default of with respect to any material term or condition thereof, nor has any event occurred which through the passage of time or the giving of notice, or both, would constitute such a default thereunder.
(c) Schedule 4.16 hereto sets forth an accurate and complete list of all officers, directors and key employees the Acquired Entities and their subsidiaries, listing all employment agreements with such officers, directors and key employees and the rate of compensation (and the portions thereof attributable to salary, bonus and other compensation, respectively) of each of such persons as of (i) the Balance Sheet Date and (ii) the date hereof. No Acquired Entity or subsidiary thereof has any employment agreements except for the persons listed on Schedule 4.16 hereto.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Dualstar Technologies Corp), Stock Purchase Agreement (Dualstar Technologies Corp)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries is a party to, or bound by, to any collective bargaining agreement or other contractslabor contract. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice with respect to any persons employed by or otherwise performing services primarily for the Company or any of its Subsidiaries (the “Company Business Personnel”), arrangements, agreements and there is no unfair labor practice complaint or understandings with a labor union grievance against the Company or labor organization that was certified any of its Subsidiaries or by any Person pursuant to the National Labor Relations Board ("NLRB")Act or any comparable state agency or foreign law pending or threatened in writing with respect to the Company Business Personnel. There is no existinglabor strike, dispute, slowdown or stoppage pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving affecting the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller Company or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption that may interfere with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning respective business activities of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, The Company and its Subsidiaries have complied in all material respects with all Applicable Laws relating to the knowledge employment of labor.
(b) Except for such incorrect classifications as would not be expected to result in a liability of more than $300,000 in the aggregate, (i) all individuals who are performing consulting or other services for the Company or any Subsidiary of the Seller, threatened against Company are or were correctly classified by the Seller Company as either “independent contractors” or “employees” as the case may be and (ii) all employees of the Company and any Subsidiary of its Subsidiaries the Company have been correctly classified as “exempt” or “non-exempt” under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(gc) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge Section 3.15(c) of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge Company Letter contains a list of the Sellername of each officer, threatened before employee and independent contractor of the Occupational Safety Company and Health Review Commission each Subsidiary of the Company, together with such person’s position or function, annual base salary or wages and any federal, state incentives or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance bonus arrangement with respect to workers' compensation claims pursuant such person. The Company has made available to insurance policies that are currently in force, or has accrued an adequate liability Buyer all form 1099s filed with the IRS for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsthe past three years.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Endocardial Solutions Inc), Merger Agreement (Endocardial Solutions Inc)
Labor and Employment Matters. (a) Section 3.16(aPKI has provided to Buyer, and covenants and agrees to update not less than monthly through the Closing Date, a list that contains full and accurate details, with respect to each Business Employee of: (i) his or her date of the Seller Disclosure Letter contains a true hire; and complete list of (aii) all of remuneration, incentives and emoluments (including any bonus or commission or overtime or shift premium entitlements or other allowances) payable (whether now or in the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and future).
(b) all The Data Room contains copies of the employees following: (whether fulli) service agreements for all Business Employees earning a base salary in excess of USD 200,000 per annum or whose contracts cannot be terminated by notice of three or fewer months or which give rise to a claim for damages or post-timeemployment compensation (other than any statutory severance), partother than
(A) at-time will offer letters that do not provide for severance and (B) any such agreement entered into to comply with applicable foreign Law; (ii) representative samples of all pro-forma contracts of employment and statements of terms and conditions for different categories of Business Employees; and (iii) staff/employee handbooks and all other material procedures, schemes and policies of any Asset Seller or otherwise) and independent contractors Acquired Company relating to any of the Business Employees.
(c) There are no individuals engaged by any Asset Seller and or Acquired Company, whether directly or indirectly, who have alleged that their employment or service status with the Subsidiaries as of Asset Seller or Acquired Company has been misclassified and/or threatened or commenced proceedings based on any such misclassification allegation in the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next last 12 months.
(d) Closing will not give rise to the name payment of any officer remuneration, payments or other employee on such list who is subject benefits or any enhancements or accelerations thereof to any written employment agreement or any other written term sheet or other document describing Business Employees whether in accordance with the standard terms and/or and conditions of employment of such employee Business Employee or otherwise.
(e) Section 2.15(e) of the rendering Disclosure Schedule lists, as of services by the Original Execution Date, each Collective Agreement relating to the Business to which PKI or any Asset Seller, Acquired Company or any other Affiliate of PKI is a party or is bound (including any such independent contractoragreements at the national or industry level).
(f) None of PKI or any of its Affiliates (with respect to the Business) nor any of the Acquired Companies has experienced since January 1, 2019 (i) any material actual or, to Sellers’ knowledge, threatened strike, lockout, work stoppage, or other similar labor activity or collective bargaining disputes or (ii) material labor organizing activities and no such actions are threatened or pending. Since January 1, 2019, no material unfair labor practice charge, material industrial dispute, or material grievance has been pending or, to Sellers’ knowledge, threatened. Except as set forth on Section 3.16(a2.15(f) of the Seller Disclosure LetterSchedule, neither the Seller nor consent or consultation of, or the rendering of formal advice by, any Subsidiary Employee Representative is a party to not required by applicable Law or bound by any material contractsagreement for PKI, consulting agreements or termination or severance agreements in respect to any officerSeller, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet Acquired Company or other document. The Seller has not received a claim from Affiliate of PKI to enter into the Original Agreement or this Agreement or to consummate any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors transactions contemplated hereby.
(g) PKI and its Affiliates (with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(aBusiness) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party toAcquired Companies are, or bound byand have since January 1, any collective bargaining agreement or other contracts2019 been, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment regarding labor and the payment employment, including (but not limited to) working time compliance, open-term/indefinite term requirements, fixed-term contracts, terms and conditions of wages employment, mobility practices, health and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim safety (including but not limited to violations any applicable Law concerning health and safety issues related to COVID-19), work injury, occupational safety, wages, overtime pay and hours, payment of the Fair Credit Reporting Actsocial security contributions, as amended, social insurance and housing fund contributions and any applicable whistleblower statutes) other mandatory contributions, the classification of employees as exempt or non-exempt from overtime pay requirements, the provision of meal and rest breaks and the right to disconnect, equal pay, national minimum wage, child labor, immigration, employment discrimination, whistleblowing, harassment, disability rights or benefits, equal opportunity, plant closures and layoffs, termination of employment, affirmative action, workers’ compensation, labor relations, employee leave issues, calculation of holiday pay/annual leave, sick leave (including but not limited to under any state applicable Laws concerning COVID-19-related paid sick leave or federal law is other benefits), employee privacy, non-compete and other post-termination restrictions, human rights, privacy rights, the use of non-employee contractors, labour dispatch and the proper classification of individuals as nonemployee contractors or consultants, except for such failures to comply that, individually or in the aggregate, are not reasonably likely to be material to the Business, taken as a whole. PKI, the Asset Sellers, each Acquired Company and any other Affiliate of PKI are not delinquent in payment to any current or former Business Employees or individual independent contractors who provides or, since January 1, 2019, provided services to the Business for any material payment or material amounts required to be reimbursed or otherwise paid, except for any arrearages occurring in the Ordinary Course of Business. Since January 1, 2019, there has been no material action, complaint, charge, inquiry, audit, arbitration, proceeding or investigation by or on behalf of any employee, prospective employee, former employee or Employee Representative, or social security authorities or labor authorities, or otherwise relating to, or arising from, PKI’s or its Affiliates’ (with respect to the Business) or any Acquired Company’s labor or employment policies or practices, pending or, to the knowledge of the SellerSellers’ knowledge, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressthreatened.
(h) There are no citationsSince January 1, investigations2019, administrative proceedings or formal complaints none of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller PKI or any of its SubsidiariesAffiliates (with respect to the Business) or any Acquired Company has closed any site of employment or effectuated any material group layoffs or redundancies, nor has PKI or any of its Affiliates (with respect to the Business) or any Acquired Company planned or announced any such action or program for the future.
(i) No workers' compensation Since January 1, 2019, (i) no director, officer or retaliation claim is pending against the Seller management level employee of any PKI or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance Affiliates (with respect to workers' compensation claims pursuant the Business) or any Acquired Company has (A) been the subject of an allegation of sexual harassment or assault of any current or former employee, applicant for employment or independent contractor of PKI or any of its Affiliates or (B) to insurance policies that are currently Sellers’ knowledge, engaged in force, or has accrued an adequate liability for any such obligations, including, without limitation, adequate accruals conduct with respect to accrued but unreported claims any current or former employee, applicant for employment or independent contractor of PKI or any of its Affiliates, and retroactive insurance premiums(ii) none of PKI or any of its Affiliates (with respect to the Business) or any Acquired Company has entered into any settlement agreements related to allegations of sexual harassment or misconduct by any employee of PKI or any of its Affiliates.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Perkinelmer Inc)
Labor and Employment Matters. (a) Section 3.16(a4.17(a) of the Seller Company Disclosure Letter contains a true Schedule lists the names and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their current position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time salary rates or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, current hourly wages, agebonus opportunity, positionhire date, statuscredited service, length accrued vacation or paid-time-off, principal work location and leave status of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and present employees of the Seller Company and each of its Subsidiaries and each such employee’s status as being exempt or nonexempt from the Subsidiaries are actively at application of state and federal wage and hour laws applicable to employees who do not occupy a managerial, administrative, or professional position or any similar Applicable Law regarding wages, hours of work (as defined in Section 5.12(a)) on and/or overtime applicable to employees located outside of the date hereofUnited States.
(b) Neither the Seller Company nor any of its Subsidiaries is or was a party to, bound by or bound bysubject to, or is currently negotiating, any collective bargaining agreement or other contracts, arrangements, agreements or understandings understanding with a labor union or labor organization that was certified organization. None of the employees of the Company or any of its Subsidiaries is represented by any union with respect to his or her employment by the National Labor Relations Board ("NLRB")Company or any Subsidiary. There is no existing, pending or, to the knowledge of the Seller, threatened (i) material unfair labor practice charge or complaintpractice, labor dispute, dispute (other than routine individual grievances) or labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller Company or any of its Subsidiaries, or (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockoutlockouts, strikestrikes, organized slowdownslowdowns, picketings, negotiated industrial actions, work stoppage stoppages or work interruption threats thereof by or with respect to such employees.
(c) Neither , in each case, pending, or to the Seller nor Knowledge of the Company, threatened against the Company or any of its Subsidiaries Subsidiaries, and during the last three (3) years there has taken not been any action that would constitute a "Mass Layoff" such action. There are no unfair labor practice charges pending before the National Labor Relations Board or "Plant Closing" within any other Governmental Authority, nor any grievances, complaints, claims or other Proceedings, in each case, which are pending or, to the meaning Knowledge of the Worker Adjustment and Retraining Notification ("WARN") Act Company, threatened by or would otherwise trigger notice requirements or liability under on behalf of any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any employees of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller Company or any of its Subsidiaries.
(dc) The Seller Since January 1, 2010, (i) there has been no “mass layoff” or “plant closing” as defined by the Worker Adjustment and its Subsidiaries are Retraining Notification Act of 1998 in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge respect of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller Company or any of its Subsidiaries and (ii) neither the Company nor any of its Subsidiaries has been affected by any transactions or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar Applicable Law.
(d) Schedule 4.17(d) of the Company Disclosure Schedule contains a list of all independent contractors, consultants, agents or agency employees currently engaged by the Company and each of its Subsidiaries, along with the position, date of retention and rate of remuneration for each such individual. Except as set forth in Schedule 4.17(d) of the Company Disclosure Schedule, neither the Company nor any Subsidiary thereof engages or retains any independent contractors, consultants, agents or agency employees.
(e) The Seller and each of its Subsidiaries are Company is in compliance in all material respects with all immigration laws relating to Applicable Laws respecting employment andincluding discrimination in employment, to the knowledge terms and conditions of the Selleremployment, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination worker classification (including discrimination based upon sexthe proper classification of workers as independent contractors and consultants and of employees as exempt or non-exempt, agein each case, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion Act of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act1938, as amended, and any applicable whistleblower statutes) under any state or federal law is pending orsimilar Applicable Law), to the knowledge of the Sellerwages, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop hours and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending orand employment practices, to including the knowledge of the SellerImmigration Reform and Control Act, threatened before the Occupational Safety and Health Review Commission or is not engaged in any federal, state or local agency or court against or involving the Seller or any of its Subsidiariesunfair labor practice.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Acme Packet Inc)
Labor and Employment Matters. (a) Section 3.16(a) of The Company has made available to Parent and the Seller Disclosure Letter contains a true Purchaser an accurate and complete list of each (ai) all employment agreement with each executive officer and other employee of the officers Company or its subsidiaries (each employee of the Seller Company or its subsidiaries, an “Employee” and all such employees, collectively, the Subsidiaries“Employees”) not terminable without material liability or obligation on 60 days’ or less notice; (ii) agreement with any director, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any executive officer or other employee on such list who is subject to any written employment agreement Employee of the Company or any other written term sheet its subsidiaries (A) the benefits of which are contingent, or other document describing the terms and/or conditions of employment which are materially altered, on the occurrence of such employee a transaction involving the Company or its subsidiaries of the rendering nature of services by such independent contractor. Except as set forth on Section 3.16(a) any of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) relating to an actual or potential change in control of the Seller Disclosure LetterCompany or (B) providing any compensation guarantee or extending severance benefits or other benefits after termination not comparable to benefits available to Employees generally; (iii) agreement, all officers and employees plan or arrangement under which any person may receive payments that may be subject to Tax imposed by Section 4999 of the Seller Code or included in the determination of such person’s “parachute payment” under Section 280G of the Code; and (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the Subsidiaries are actively at work (as defined in Section 5.12(a)) benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the date hereofbasis of any of the transactions contemplated by this Agreement. Since March 31, 2007, neither the Company nor any of its subsidiaries has entered into or amended any employment or severance agreement with any director, executive officer or other employee of the Company or granted any severance or termination pay to any director, executive officer or employee of the Company.
(b) The Company and each of its subsidiaries are in material compliance with all applicable Laws respecting employment, employment practices, terms and conditions of employment, employee safety and wages and hours, and in each case, with respect to 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 Employees, (ii) is not liable for any arrears of wages, severance pay or any taxes or any penalty for failure to comply with any of 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). There are no material actions, suits, claims or administrative matters pending, or to the knowledge of the Company, threatened or reasonably anticipated against the Company or any of its subsidiaries, or any of their Employees relating to any Employee, Employee agreement or Company or subsidiary employee plan. There are no pending or, to the knowledge of the Company, threatened material claims or actions against Company or any of its subsidiaries, any Company or subsidiary trustee under any worker’s compensation policy or long-term disability policy. None of the Company or any of its subsidiaries has any direct or indirect liability with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(c) No work stoppage or labor strike against the Company or any of its subsidiaries is pending, or, to the knowledge of the Company, threatened or reasonably anticipated. The Company has no knowledge of any activities or proceedings of any labor union to organize any Employees. There are no actions, suits, claims, labor disputes or grievances pending or to the knowledge of the Company threatened or reasonably anticipated relating to any labor matters involving any Employee, including charges of unfair labor practices or discrimination complaints. None of the Company or any of its subsidiaries has engaged in any material unfair labor practices within the meaning of the National Labor Relations Act. Neither the Seller Company nor any of its Subsidiaries is subsidiaries presently, nor have any of them been in the past, a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings union contract with a labor union or labor organization that was certified respect to Employees and no collective bargaining agreement is being negotiated by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity subsidiaries. The Company and its subsidiaries have not incurred any liability or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of obligation under the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any similar state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its SubsidiariesLaw that remains unsatisfied.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(aPKI has provided to Buyer, and covenants and agrees to update not less than monthly through the Closing Date, a list that contains full and accurate details, with respect to each Business Employee of: (i) his or her date of the Seller Disclosure Letter contains a true hire; and complete list of (aii) all of remuneration, incentives and emoluments (including any bonus or commission or overtime or shift premium entitlements or other allowances) payable (whether now or in the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and future).
(b) all The Data Room contains copies of the employees following: (whether fulli) service agreements for all Business Employees earning a base salary in excess of USD 200,000 per annum or whose contracts cannot be terminated by notice of three or fewer months or which give rise to a claim for damages or post-timeemployment compensation (other than any statutory severance), partother than (A) at-time will offer letters that do not provide for severance and (B) any such agreement entered into to comply with applicable foreign Law; (ii) representative samples of all pro-forma contracts of employment and statements of terms and conditions for different categories of Business Employees; and (iii) staff/employee handbooks and all other material procedures, schemes and policies of any Asset Seller or otherwise) and independent contractors Acquired Company relating to any of the Business Employees.
(c) There are no individuals engaged by any Asset Seller and or Acquired Company, whether directly or indirectly, who have alleged that their employment or service status with the Subsidiaries as of Asset Seller or Acquired Company has been misclassified and/or threatened or commenced proceedings based on any such misclassification allegation in the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next last 12 months.
(d) Closing will not give rise to the name payment of any officer remuneration, payments or other employee on such list who is subject benefits or any enhancements or accelerations thereof to any written employment agreement or any other written term sheet or other document describing Business Employees whether in accordance with the standard terms and/or and conditions of employment of such employee Business Employee or otherwise.
(e) Section 2.15(e) of the rendering Disclosure Schedule lists, as of services by the date of this Agreement, each Collective Agreement relating to the Business to which PKI or any Asset Seller, Acquired Company or any other Affiliate of PKI is a party or is bound (including any such independent contractoragreements at the national or industry level).
(f) None of PKI or any of its Affiliates (with respect to the Business) nor any of the Acquired Companies has experienced since January 1, 2019 (i) any material actual or, to Sellers’ knowledge, threatened strike, lockout, work stoppage, or other similar labor activity or collective bargaining disputes or (ii) material labor organizing activities and no such actions are threatened or pending. Since January 1, 2019, no material unfair labor practice charge, material industrial dispute, or material grievance has been pending or, to Sellers’ knowledge, threatened. Except as set forth on Section 3.16(a2.15(f) of the Seller Disclosure LetterSchedule, neither the Seller nor consent or consultation of, or the rendering of formal advice by, any Subsidiary Employee Representative is a party to not required by applicable Law or bound by any material contractsagreement for PKI, consulting agreements or termination or severance agreements in respect to any officerSeller, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet Acquired Company or other document. The Seller has not received a claim from Affiliate of PKI to enter into this Agreement or to consummate any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors transactions contemplated hereby.
(g) PKI and its Affiliates (with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(aBusiness) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party toAcquired Companies are, or bound byand have since January 1, any collective bargaining agreement or other contracts2019 been, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment regarding labor and the payment employment, including (but not limited to) working time compliance, open-term/indefinite term requirements, fixed-term contracts, terms and conditions of wages employment, mobility practices, health and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim safety (including but not limited to violations any applicable Law concerning health and safety issues related to COVID-19), work injury, occupational safety, wages, overtime pay and hours, payment of the Fair Credit Reporting Actsocial security contributions, as amended, social insurance and housing fund contributions and any applicable whistleblower statutes) other mandatory contributions, the classification of employees as exempt or non-exempt from overtime pay requirements, the provision of meal and rest breaks and the right to disconnect, equal pay, national minimum wage, child labor, immigration, employment discrimination, whistleblowing, harassment, disability rights or benefits, equal opportunity, plant closures and layoffs, termination of employment, affirmative action, workers’ compensation, labor relations, employee leave issues, calculation of holiday pay/annual leave, sick leave (including but not limited to under any state applicable Laws concerning COVID-19-related paid sick leave or federal law is other benefits), employee privacy, non-compete and other post-termination restrictions, human rights, privacy rights, the use of non-employee contractors, labour dispatch and the proper classification of individuals as nonemployee contractors or consultants, except for such failures to comply that, individually or in the aggregate, are not reasonably likely to be material to the Business, taken as a whole. PKI, the Asset Sellers, each Acquired Company and any other Affiliate of PKI are not delinquent in payment to any current or former Business Employees or individual independent contractors who provides or, since January 1, 2019, provided services to the Business for any material payment or material amounts required to be reimbursed or otherwise paid, except for any arrearages occurring in the Ordinary Course of Business. Since January 1, 2019, there has been no material action, complaint, charge, inquiry, audit, arbitration, proceeding or investigation by or on behalf of any employee, prospective employee, former employee or Employee Representative, or social security authorities or labor authorities, or otherwise relating to arising from PKI’s or its Affiliates’ (with respect to the Business) or any Acquired Company’s labor or employment policies or practices, pending or, to the knowledge of the SellerSellers’ knowledge, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressthreatened.
(h) There are no citationsSince January 1, investigations2019, administrative proceedings or formal complaints none of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller PKI or any of its SubsidiariesAffiliates (with respect to the Business) nor any Acquired Company has closed any site of employment or effectuated any material group layoffs or redundancies, nor has PKI or any of its Affiliates (with respect to the Business) any Acquired Company planned or announced any such action or program for the future.
(i) No workers' compensation Since January 1, 2019, (i) no director, officer or retaliation claim is pending against the Seller management level employee of any PKI or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance Affiliates (with respect to workers' compensation claims pursuant the Business) or any Acquired Company has (A) been the subject of an allegation of sexual harassment or assault of any current or former employee, applicant for employment or independent contractor of PKI or any of its Affiliates or (B) to insurance policies that are currently in forceSellers’ knowledge, or has accrued an adequate liability for engaged any such obligations, including, without limitation, adequate accruals conduct with respect to accrued but unreported claims any current or former employee, applicant for employment or independent contractor of PKI or any of its Affiliates, and retroactive insurance premiums(ii) none of PKI or any of its Affiliates (with respect to the Business) or Acquired Company has entered into any settlement agreements related to allegations of sexual harassment or misconduct by any employee of PKI or any of its Affiliates.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Perkinelmer Inc)
Labor and Employment Matters. (a) A list of the names, jobs and material details of the terms of employment (including the emoluments) of every employee of the Company is set out in Section 3.16(a3.25(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofSchedule.
(b) Neither the Seller nor Details of any benefit received by any employee otherwise than in cash, and of its Subsidiaries any benefit received by any employee in cash which is a party torelated to sales, profits, turnover or performance, or bound bywhich is otherwise variable (other than normal overtime), any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge are set out in Section 3.25(b) of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employeesDisclosure Schedule.
(c) Neither To the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning Knowledge of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementWarrantors, arbitration or court decision or governmental order in any way limits or restricts any each of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any employees of the operations Company is entitled to lawfully work for the Company in the United Kingdom and each employee and the Company has received all necessary government authorizations and permits in relation to such employment. The Company is not in breach of any applicable United Kingdom or European Union laws in relation to the employment of the Seller or any employees of its Subsidiariesthe Company.
(d) The Seller and its Subsidiaries are Any contract of employment to which the Company is a party can be terminated by the Company without damages or compensation (other than that payable by statute) by giving at any time only the minimum period of notice applicable to that contract which is specified in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge section 86 of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesEmployment Rights Xxx 0000.
(e) The Seller and each of No personnel are engaged by the Company on any basis other than its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesemployees.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge No employee of the Seller, threatened before the Equal Employment Opportunity Commission Company has given notice terminating his contract of employment or is under notice of dismissal and no amount due to or in respect of any federal, state employee or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge former employee of the Seller, threatened against Company is in arrears and unpaid other than his salary for the Seller or any month current at the date of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariesthis agreement.
(g) If Since the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan5/31 Balance Sheet, no discrimination claimchange has been made in the emoluments or other terms of engagement of any employee of the Company, show-cause noticeand no such change, conciliation proceeding, sanctions or debarment proceedings is pending or, and to the knowledge Knowledge of the SellerWarrantors, has been threatened against no negotiation or request for such a change, is due or expected within six months from the Seller or any date of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressthis Agreement.
(h) There are is no citationsdispute between the Company any trade union or other organization formed for a similar purpose existing, investigations, administrative proceedings pending or formal complaints of violations of local, state threatened and there is no collective bargaining agreement or federal occupational safety and health laws pending or, other arrangement (whether binding or not) to which the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its SubsidiariesCompany is a party.
(i) No workers' compensation The Company has no outstanding undischarged liability to pay to any Government Body in any jurisdiction any contribution, taxation or retaliation claim is the impost arising in connection with the employment or engagement of personnel by the Company.
(j) There are no claims threatened or pending against the Seller Company by or in respect of any employee or former employee in respect of its Subsidiaries any accident or injury or in excess of $50,000 in relation to any other matter arising from his employment or engagement.
(k) There are no facts Known to the aggregate and Company which suggest that there is a claim against the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsCompany under any applicable employment legislation.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true XXX and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the its Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a neither party to, bound by or bound by, in the process of negotiating any collective bargaining agreement or other contractslabor-related agreement or arrangement with any labor union, arrangementstrade union, agreements labor organization or understandings other employee representative body and no employees of XXX or its Subsidiaries are represented by any labor union, labor organization or works council with respect to their employment with XXX or its Subsidiaries. To the Knowledge of XXX, there have been no labor union organizing activities with respect to any employees of XXX or its Subsidiaries.
(b) In the last three (3) years, none of XXX or any of its Subsidiaries has entered into a settlement agreement with a labor union current or labor organization that was certified former officer, employee or independent contractor of XXX or its Subsidiaries who made allegations of discrimination or sexual harassment by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened either (i) unfair labor practice charge an officer of XXX or complaintits Subsidiaries or (ii) an employee of XXX or its Subsidiaries at the level of Director or above. To the Knowledge of XXX, labor disputein the last three (3) years, labor arbitration proceeding there have been no formal allegations of discrimination or sexual harassment made against (A) any officer of XXX or its Subsidiaries or (B) an employee of XXX or its Subsidiaries at the level of Director or above.
(c) To the Knowledge of XXX, no current employee of XXX or its Subsidiaries, who is at the level of Director or above, intends to terminate his or her employment with XXX or any other matter before of its Subsidiaries prior to the NLRB twelve (12) month anniversary of the Closing.
(d) Except as would not, individually or any other comparable state agency against in the aggregate, have a XXX Material Adverse Effect, each release of employment claims in favor of XXX and its Subsidiaries obtained from an employee of XXX or involving its Subsidiaries since December 31, 2018 is effective and binding to release all employment claims purported to be released therein by such employee, subject to applicable Law.
(e) Except as would not, individually or in the Seller aggregate, reasonably be expected to result in material Liability to XXX or any of its Subsidiaries, to the Knowledge of XXX, (iii) activity or proceeding by a labor union or representative thereof each individual who is currently providing services to organize any employees of the Seller XXX or any of its Subsidiaries, or who provided services to XXX or any of its Subsidiaries since December 31, 2018, as an independent contractor or consultant is or was properly classified and properly treated as an independent contractor or consultant by XXX and its Subsidiaries, (ii) each individual who is currently providing services to XXX or any of its Subsidiaries through a third-party service provider, or who provided services to XXX or any of its Subsidiaries through a third-party service provider since December 31, 2018, is not or was not an employee of XXX or any of its Subsidiaries and (iii) certification none of XXX or decertification question relating any of its Subsidiaries has a single employer, joint employer, alter ego or similar relationship with any other company not affiliated with XXX.
(f) To the Knowledge of XXX, no employee of XXX or its Subsidiaries is in any respect in material violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement or other restrictive covenant: (i) to collective bargaining units at the premises of the Seller XXX or any of its Subsidiaries or (ivii) lockout, strike, organized slowdown, work stoppage to a former employer of any such employee relating (A) to the right of any such employee to be employed by XXX or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(dB) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge or use of the Seller, threatened before the Department of Labor trade secrets or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesproprietary information.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true STFC and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the its Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a neither party to, bound by or bound by, in the process of negotiating any collective bargaining agreement or other contractslabor-related agreement or arrangement with any labor union, arrangementstrade union, agreements labor organization or understandings other employee representative body and no employees of STFC or its Subsidiaries are represented by any labor union, labor organization or works council with respect to their employment with STFC or its Subsidiaries. To the Knowledge of STFC, there have been no labor union organizing activities with respect to any employees of STFC or its Subsidiaries.
(b) In the last three (3) years, none of STFC or any of its Subsidiaries has entered into a settlement agreement with a labor union current or labor organization that was certified former officer, employee or independent contractor of STFC or its Subsidiaries who made allegations of discrimination or sexual harassment by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened either
(i) unfair labor practice charge an officer of STFC or complaintits Subsidiaries or (ii) an employee of STFC or its Subsidiaries at the level of Director or above. To the Knowledge of STFC, labor disputein the last three (3) years, labor arbitration proceeding there have been no formal allegations of discrimination or sexual harassment made against (A) any officer of STFC or its Subsidiaries or (B) an employee of STFC or its Subsidiaries at the level of Director or above.
(c) To the Knowledge of STFC, no current employee of STFC or its Subsidiaries, who is at the level of Director or above, intends to terminate his or her employment with STFC or any other matter before of its Subsidiaries prior to the NLRB twelve (12) month anniversary of the Closing.
(d) Except as would not, individually or any other comparable state agency against in the aggregate, have a STFC Material Adverse Effect, each release of employment claims in favor of STFC and its Subsidiaries obtained from an employee of STFC or involving its Subsidiaries since December 31, 2018 is effective and binding to release all employment claims purported to be released therein by such employee, subject to applicable Law.
(e) Except as would not, individually or in the Seller aggregate, reasonably be expected to result in material Liability to XXX or any of its Subsidiaries, to the Knowledge of STFC, (iii) activity or proceeding by a labor union or representative thereof each individual who is currently providing services to organize any employees of the Seller STFC or any of its Subsidiaries, (iii) certification or decertification question relating who provided services to collective bargaining units at the premises of the Seller STFC or any of its Subsidiaries since December 31, 2018, as an independent contractor or (iv) lockout, strike, organized slowdown, work stoppage consultant is or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" was properly classified and properly treated as an independent contractor or "Plant Closing" within the meaning of the Worker Adjustment consultant by STFC and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
, (dii) The Seller and its Subsidiaries are in compliance with all applicable Laws relating each individual who is currently providing services to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller STFC or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAthrough a third-party service provider, or any other federal law relating who provided services to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller STFC or any of its Subsidiaries through a third-party service provider since December 31, 2018, is a federal, state not or local contractor obligated to develop and maintain was not an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge employee of the Seller, has been threatened against the Seller STFC or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.and
Appears in 1 contract
Samples: Merger Agreement
Labor and Employment Matters. (a) Section 3.16(a3.12(a) of the Seller OSI Disclosure Letter contains Schedule sets forth a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided labor or collective bargaining agreements to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement which OSI or any other written term sheet subsidiary of OSI is party and all employment or other document describing the terms and/or conditions severance compensation agreements with respect to employees receiving annual compensation in excess of employment of such employee or of the rendering of services by such independent contractor$100,000. Except as set forth on in Section 3.16(a3.12(a) of the Seller OSI Disclosure LetterSchedule, (i) there are no labor or collective bargaining agreements which pertain to employees of OSI or its subsidiaries, there are no employment or severance agreements with respect to employees of OSI or its subsidiaries receiving annual compensation in excess of $100,000 and (ii) neither the Seller OSI nor any Subsidiary of its subsidiaries is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to agreement with any officer, employee or former employee, consultant pursuant to which such person would be entitled to receive any additional compensation or independent contractoran accelerated payment of compensation as a result of the (x) consummation of the transactions contemplated hereby or (y) the termination of such employment or consulting following such consummation. The Seller OSI has provided heretofore made available to the Purchaser true, correct Infinity true and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named agreements listed on Section 3.16(a3.12(a) of the Seller OSI Disclosure Letter. Schedule, together with all amendments, modifications, supplements and side letters affecting the duties, rights and obligations of any party thereunder.
(b) Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a3.12(b) of the Seller OSI Disclosure LetterSchedule, all officers and no employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor OSI or any of its Subsidiaries is a party to, or bound by, subsidiaries are represented by any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or organization. No labor organization that was certified by or group of employees of OSI or any of its subsidiaries has made a pending demand for recognition or certification; and, to OSI's knowledge, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB labor relations tribunal or authority. To OSI's knowledge, there are no organizing activities involving OSI or its subsidiaries pending with any other comparable state agency against labor organization or involving the Seller group of employees of OSI or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employeessubsidiaries.
(c) Neither Except as has not had and would not reasonably be expected to have, individually or in the Seller nor aggregate, a Material Adverse Effect on OSI,
(i) there are no unfair labor practice charges, grievances or complaints pending or threatened in writing by or on behalf of any employee or group of employees of OSI or its subsidiaries;
(ii) there are no complaints, charges or claims against OSI or its subsidiaries pending, or threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by OSI or its subsidiaries; and
(iii) OSI and each of its Subsidiaries subsidiaries is in compliance with all Laws relating to the employment of labor, including all such Laws and orders relating to wages, hours, collective bargaining, discrimination, civil rights, safety and health workers' compensation and the collection and payment of withholding and/or Social Security Taxes and similar Taxes. OSI and each of its subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within complied with the meaning of the Worker Workers Adjustment and Retraining Notification Act ("WARN") Act or would otherwise trigger notice requirements or liability under any similar state or local plant closing notice law. No agreement, arbitration ) and has not incurred any liabilities or court decision or governmental order obligations in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesconnection therewith which remain outstanding.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a any labor union unions or labor organization that was certified by the National Labor Relations Board ("NLRB")organizations. There is no existing(i) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiariessubsidiaries relating to their businesses, (ii) activity or proceeding by a labor union or representative thereof to the knowledge of the Company to organize any employees of the Seller Company or any of its Subsidiariessubsidiaries, or (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockoutlockouts, strikestrikes, organized slowdownslowdowns, work stoppage stoppages or work interruption threats thereof by or with respect to such employees, and during the last three years there has not been any such action.
(cb) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are nono complaints, and charges or claims against the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings Company or formal complaints of violations of any federal or state wage and hour laws its subsidiaries pending or, to the knowledge of the SellerCompany, threatened before to be brought or filed with any Governmental Entity based on, arising out of, in connection with, or otherwise relating to the Department employment or termination of Labor employment of any individual by the Company or any federalits subsidiaries that, state if individually or administrative agency collectively resolved against the Company or court against or involving the Seller or any of its Subsidiariessubsidiaries, would have a Company Material Adverse Effect.
(ec) The Seller Each of the Company and each of its Subsidiaries are subsidiaries is in compliance with all immigration laws relating to Laws regarding employment andpractices, to terms and conditions of employment and wages, except for such noncompliance that, individually or in the knowledge aggregate, would not have a Company Material Adverse Effect.
(d) During the last five years there has been no “mass layoff” or “plant closing” as defined by the Worker Adjustment and Retraining Notification Act of 1988 (the ”WARN Act”) in respect of the Seller, there are no citations, investigations, administrative proceedings Company or formal complaints of violations of its subsidiaries. Neither the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or Company nor any of its Subsidiaries.
(f) There are no investigationssubsidiaries has been affected by any transactions or engaged in layoffs or employment terminations sufficient in number to trigger application of any state, administrative proceedings, charges local or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap foreign Law or veteran status) pending or, regulation which is similar to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay WARN Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Invitrogen Corp)
Labor and Employment Matters. (ai) Section 3.16(a) of the Seller Disclosure Letter contains a true The First Advantage Parties and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectivelyrespective Subsidiaries are, and annual rate have been at all times since January 1, 2017, in compliance in all material respects with all applicable Laws respecting employment, retention of compensation independent contractors, employment practices, terms and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractoremployment, and wages and hours. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor the Bank, nor any of its Subsidiaries their respective Subsidiaries, is or has ever been a party to, or is or has ever been bound by, any collective bargaining agreement or contract or other contracts, arrangements, agreements agreement or understandings understanding with a labor union or labor organization with respect to its employees, nor is the Company or the Bank, or any of their respective Subsidiaries, the subject of any proceeding in which it is asserted that was certified by the National Labor Relations Board ("NLRB"). There Company or the Bank, or any of their respective Subsidiaries, has committed an unfair labor practice or seeking to compel the Company or the Bank, or any of their respective Subsidiaries, to bargain with any labor union or labor organization as to wages or conditions of employment, nor, to the Knowledge of the Company, has any such proceeding been threatened, nor is no existingthere any strike, labor dispute, or organizational effort involving the Company or the Bank, or any of their respective Subsidiaries, pending or, to the knowledge Knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, threatened.
(ii) activity Set forth on Schedule 4.2(q)(ii) of the First Advantage Disclosure Memorandum is (A) a true, correct, and complete list of all employees (including any leased or proceeding by a labor union temporary employees) of the First Advantage Parties or representative thereof to organize their respective Subsidiaries; and (B) each such employee’s current rate of compensation and bonus or incentive compensation arrangements. Set forth or identified on Schedule 4.2(q)(ii) of the First Advantage Disclosure Memorandum are the names of any employees of the Seller First Advantage Parties or any of its Subsidiaries, their respective Subsidiaries who are absent from work due to a leave of absence (iii) certification or decertification question relating to collective bargaining units at including without limitation in accordance with the premises requirements of the Seller Family and Medical Leave Act or the Uniformed Services Employment and Reemployment Rights Act) or a work-related injury, or who are receiving workers’ compensation or disability compensation. Other than compensation and benefits payable in the ordinary course of business the payment of which is not delinquent, there are no unpaid wages, salaries, bonuses, commissions, or other amounts owed to any employee or former employee of the Company or the Bank or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its their respective Subsidiaries.
(diii) The Seller To the Knowledge of the Company, no director, officer, employee, or independent contractor of or to the Company or the Bank or any of their respective Subsidiaries is a party to or otherwise bound by any Contract, including without limitation any confidentiality, non-competition, non-solicitation, or proprietary rights agreement, that has adversely affected or would reasonably be expected to adversely affect the ability of the Company or the Bank or any of their respective Subsidiaries to conduct its business as currently conducted or the ability of such Person to perform and its Subsidiaries are in compliance with all carry out such Person’s duties or responsibilities.
(iv) Neither the Company nor the Bank, nor any of their respective Subsidiaries, has classified any Person as an “independent contractor” or any similar status who, under applicable Laws relating to employment and Law or the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations provisions of any federal First Advantage Benefit Plan (as defined below), should have been classified as an employee. Neither the Company nor the Bank, nor any of their respective Subsidiaries, has any material Liability for improperly excluding any Person who provides or state wage and hour laws has provided services to the Company or the Bank or any of their respective Subsidiaries in any capacity from participating in any First Advantage Benefit Plan.
(v) Except as set forth on Schedule 4.2(q)(v) of the First Advantage Disclosure Memorandum, as of the date of this Agreement, to the Knowledge of the Company, no employee of the Company or the Bank (or any of their respective Subsidiaries) with a title of vice-president or above has informed the Company or the Bank (or any of their respective Subsidiaries) of his or her intent to terminate his or her employment during the next 12 months, including in connection with or as a result of the transactions contemplated by this Agreement.
(vi) There is no pending or, to the knowledge Knowledge of the SellerCompany, threatened before suit, action, claim, or legal, administrative, arbitration, or other proceeding by or on behalf of any current or former employee of the Department of Labor Company or any federal, state or administrative agency or court against or involving the Seller Bank or any of its their respective Subsidiaries.
, including without limitation any suit, action, claim, or legal, administrative, arbitration, or other proceeding alleging noncompliance with applicable Laws respecting employment, employment practices, wages and hours, or terms and conditions of employment (e) The Seller but excluding workers’ compensation matters), which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citationsfacts or circumstances that would reasonably be expected to give rise to any such suit, investigationsaction, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAclaim, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplacelegal, and no wrongful dischargeadministrative, libelarbitration, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariesproceeding.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (ai) Section 3.16(aThe Foothills Parties and their respective Subsidiaries are in compliance in all material respects with all applicable Laws respecting employment, retention of independent contractors, employment practices, terms and conditions of employment, and wages and hours. Neither Bancorp nor the Bank, nor any of their respective Subsidiaries, is or has ever been a party to, or is or has ever been bound by, any collective bargaining agreement or contract or other agreement or understanding with a labor union or labor organization with respect to its employees, nor is Bancorp or the Bank, or any of their respective Subsidiaries, the subject of any proceeding in which it is asserted that Bancorp or the Bank, or any of their respective Subsidiaries, has committed an unfair labor practice or seeking to compel Bancorp or the Bank, or any of their respective Subsidiaries, to bargain with any labor organization as to wages and conditions of employment, nor, to the Knowledge of the Foothills Parties, has any such proceeding been threatened, nor is there any strike, labor dispute, or organizational effort involving Bancorp or the Bank, or any of their respective Subsidiaries, pending or, to the Knowledge of the Foothills Parties, threatened.
(ii) Set forth on Schedule 4.2(r)(ii) of the Seller Foothills Disclosure Letter contains Memorandum is (A) a true true, correct, and complete list of all employees (aincluding any leased or temporary employees) all of Bancorp or the officers of the Seller and the Bank or their respective Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to ; (B) each of them, respectively, and annual such employee’s current rate of compensation and bonus or incentive compensation arrangements; and (bC) all each such employee’s date of hire and accrued vacation, sick leave, personal leave, and paid time off, as applicable. Set forth or identified on Schedule 4.2(r)(ii) of the Foothills Disclosure Memorandum are the names of any employees of Bancorp or the Bank or their respective Subsidiaries who are absent from work due to a leave of absence (whether full-time, part-time or otherwise) and independent contractors including without limitation in accordance with the requirements of the Seller Family and Medical Leave Act or the Subsidiaries as Uniformed Services Employment and Reemployment Rights Act) or a work-related injury, or who are receiving workers’ compensation or disability compensation. There are no unpaid wages, salaries, bonuses, commissions, or other amounts owed to any employee or former employee of Bancorp or the Bank or any of their respective Subsidiaries.
(iii) To the Knowledge of the date hereofFoothills Parties, specifying their annual salaryno director, hourly wagesofficer, ageemployee, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor feesof or to Bancorp or the Bank or any of their respective Subsidiaries is a party to or otherwise bound by any Contract, together with including without limitation any confidentiality, non-competition, non-solicitation, or proprietary rights agreement, that could adversely affect the ability of Bancorp or the Bank or any of their respective Subsidiaries to conduct its business as currently conducted or the ability of such Person to perform and carry out such Person’s duties or responsibilities.
(iv) Neither Bancorp nor the Bank, nor any of their respective Subsidiaries, has classified any Person as an appropriate notation next to “independent contractor” or any similar status who, under applicable Law or the name provisions of any officer Foothills Benefit Plan (as defined below), should have been classified as an employee. Neither Bancorp nor the Bank, nor any of their respective Subsidiaries, has any Liability for improperly excluding any Person who provides or other employee on such list who is subject has provided services to any written employment agreement Bancorp or the Bank or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. their respective Subsidiaries in any capacity from participating in any Foothills Benefit Plan.
(v) Except as set forth on Section 3.16(aSchedule 4.2(r)(v) of the Seller Foothills Disclosure LetterMemorandum, neither as of the Seller nor any Subsidiary is a party to or bound by any material contractsdate of this Agreement, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to none of the Purchaser true, correct and complete copies of each such employment agreement, term sheet officers or other document. The Seller has not received a claim from any Governmental Entity to employees of Bancorp or the effect that the Seller Bank (or any Subsidiary has improperly classified as an independent contractor of their respective Subsidiaries) with a title of branch manager or higher have informed Bancorp or the Bank (or any person named on Section 3.16(aof their respective Subsidiaries) of their intent, and the Seller Disclosure Letter. Except as set forth in Section 3.16 Foothills Parties do not have Knowledge that any of the Seller Disclosure Letterofficers or other employees of Bancorp or the Bank (or any of their respective Subsidiaries) with a title of branch manager or higher have an intention, neither to terminate their employment with Bancorp or the Seller nor Bank (or any Subsidiary has made any verbal commitments to any such officersof their respective Subsidiaries) during the next 12 months, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters including in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofAgreement.
(bvi) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge Knowledge of the SellerFoothills Parties, threatened (i) unfair labor practice charge suit, action, claim, or complaintlegal, labor disputeadministrative, labor arbitration arbitration, or other proceeding by or on behalf of any other matter before current or former employee of Bancorp or the NLRB or any other comparable state agency against or involving the Seller Bank or any of its their respective Subsidiaries, including without limitation any suit, action, claim, or legal, administrative, arbitration, or other proceeding alleging noncompliance with applicable Laws respecting employment, employment practices, wages and hours, or terms and conditions of employment (ii) activity but excluding workers’ compensation matters), which if adversely determined would, individually or proceeding by in the aggregate, reasonably be expected to have a labor union or representative thereof Foothills Material Adverse Effect, and to organize any employees the Knowledge of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, Foothills Parties there are no citationsfacts or circumstances that could reasonably be expected to give rise to any such suit, investigationsaction, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAclaim, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplacelegal, and no wrongful dischargeadministrative, libelarbitration, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariesproceeding.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (ai) Section 3.16(aThe Bancshares Parties and their Subsidiaries are in compliance in all material respects with all applicable Laws respecting employment, retention of independent contractors, employment practices, terms and conditions of employment, and wages and hours. Neither Bancshares nor the Bank, nor any of their Subsidiaries, is or has ever been a party to, or is or has ever been bound by, any collective bargaining agreement or contract or other agreement or understanding with a labor union or labor organization with respect to its employees, nor is Bancshares or the Bank, or any of their Subsidiaries, the subject of any proceeding in which it is asserted that Bancshares or the Bank, or any of their Subsidiaries, has committed an unfair labor practice or seeking to compel Bancshares or the Bank, or any of their Subsidiaries, to bargain with any labor organization as to wages and conditions of employment, nor, to the Knowledge of the Bancshares Parties, has any such proceeding been threatened, nor is there any strike, labor dispute, or organizational effort involving Bancshares or the Bank, or any of their Subsidiaries, pending or, to the Knowledge of the Bancshares Parties, threatened.
(ii) Set forth on Schedule 4.2(r)(ii) of the Seller Bancshares Disclosure Letter contains Memorandum is (A) a true true, correct, and complete list of all employees (aincluding any leased or temporary employees) all of the officers of the Seller Bancshares Parties and the their Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to ; (B) each of them, respectively, and annual such employee’s current rate of compensation and bonus or incentive compensation arrangements; and (bC) all each such employee’s date of hire and accrued vacation, sick leave, personal leave, and paid time off, as applicable. Set forth or identified on Schedule 4.2(r)(ii) of the Bancshares Disclosure Memorandum are the names of any employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and Bancshares Parties or any of their Subsidiaries who are absent from work due to a leave of absence (including without limitation in accordance with the Subsidiaries as requirements of the date hereofFamily and Medical Leave Act or the Uniformed Services Employment and Reemployment Rights Act) or a work-related injury, specifying their annual salary, hourly or who are receiving workers’ compensation or disability compensation. There are no unpaid wages, agesalaries, positionbonuses, statuscommissions, length of service and the allocation of annual salary, bonus and or other amounts paid and other benefits provided owed to each any employee or former employee of themBancshares or the Bank or any of their Subsidiaries.
(iii) To the Knowledge of the Bancshares Parties, respectivelyno director, consulting officer, employee, or other independent contractor feesof or to Bancshares or the Bank or any of their Subsidiaries is a party to or otherwise bound by any Contract, together with including without limitation any confidentiality, non-competition, non-solicitation, or proprietary rights agreement, that could adversely affect the ability of Bancshares or the Bank or any of their Subsidiaries to conduct its business as currently conducted or the ability of such Person to perform and carry out such Person’s duties or responsibilities.
(iv) Neither Bancshares nor the Bank, nor any of their Subsidiaries, has classified any Person as an appropriate notation next to “independent contractor” or any similar status who, under applicable Law or the name provisions of any officer Bancshares Benefit Plan (as defined below), should have been classified as an employee. Neither Bancshares nor the Bank, nor any of their Subsidiaries, has any Liability for improperly excluding any Person who provides or other employee on such list who is subject has provided services to any written employment agreement Bancshares or the Bank or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. their Subsidiaries in any capacity from participating in any Bancshares Benefit Plan.
(v) Except as set forth on Section 3.16(aSchedule 4.2(r)(v) of the Seller Bancshares Disclosure LetterMemorandum, neither as of the Seller nor any Subsidiary is a party to or bound by any material contractsdate of this Agreement, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to none of the Purchaser true, correct and complete copies of each such employment agreement, term sheet officers or other document. The Seller has not received a claim from any Governmental Entity to employees of Bancshares or the effect that the Seller Bank (or any Subsidiary has improperly classified as an independent contractor of their Subsidiaries) with a title of branch manager or higher have informed Bancshares or the Bank (or any person named on Section 3.16(aof their Subsidiaries) of their intent, and the Seller Disclosure Letter. Except as set forth in Section 3.16 Bancshares Parties do not have Knowledge that any of the Seller Disclosure Letterofficers or other employees of Bancshares or the Bank (or any of their Subsidiaries) with a title of branch manager or higher have an intention, neither to terminate their employment with Bancshares or the Seller nor Bank (or any Subsidiary has made any verbal commitments to any such officersof their Subsidiaries) during the next 12 months, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters including in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofAgreement.
(bvi) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge Knowledge of the SellerBancshares Parties, threatened (i) unfair labor practice charge suit, action, claim, or complaintlegal, labor disputeadministrative, labor arbitration arbitration, or other proceeding by or on behalf of any other matter before current or former employee of Bancshares or the NLRB or any other comparable state agency against or involving the Seller Bank or any of its their Subsidiaries, including without limitation any suit, action, claim, or legal, administrative, arbitration, or other proceeding alleging noncompliance with applicable Laws respecting employment, employment practices, wages and hours, or terms and conditions of employment (ii) activity but excluding workers’ compensation matters), which if adversely determined would, individually or proceeding by in the aggregate, reasonably be expected to have a labor union or representative thereof Bancshares Material Adverse Effect, and to organize any employees the Knowledge of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, Bancshares Parties there are no citationsfacts or circumstances that could reasonably be expected to give rise to any such suit, investigationsaction, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAclaim, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplacelegal, and no wrongful dischargeadministrative, libelarbitration, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariesproceeding.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a(i) None of the Seller Disclosure Letter contains a true and complete list of (a) all in respect of the officers Business), the Acquired Entity or the Purchased Subsidiaries is a party, or otherwise subject, to any labor or collective bargaining agreement or other Contract with respect to any Business Employees with any labor organization, labor union, works council, trade union or other employee representative body (each, a “Union”), and none of the 97989374_16 Seller and (in respect of the SubsidiariesBusiness), specifying their positionthe Acquired Entity or any Purchased Subsidiary is negotiating such a Contract; (ii) no Business Employee is represented by a Union; (iii) no notice, ageconsent or consultation obligations with respect to any Business Employees, length or any Union, will be a condition precedent to, or triggered by, the execution of service and this Agreement or the annual salaryconsummation of the transactions contemplated hereby; (iv) to the Knowledge of the Seller, bonus and allocation of amounts paid and other benefits provided to each of them, respectivelythere are, and annual rate since the date that is three years prior to the date hereof there have been, no pending or threatened organizing activities, collective bargaining arrangements, or petitions filed or demands made seeking recognition of compensation and bargaining representative that would affect the Business with any Union or Business Employees; (bv) all of since the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of date that is three years prior to the date hereof, specifying their annual salarythere has not been any lockouts, hourly wagesstrikes, ageslowdowns, positionpicketing, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting work stoppages or other independent contractor fees, together similar labor activities pending or threatened by or with an appropriate notation next respect to any Business Employees; and (vi) since the date that is three years prior to the name of any officer date hereof, there have been no Actions pending (or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or Knowledge of the rendering of services Seller, threatened) by such independent contractor. Except as set forth on Section 3.16(a) or before any Governmental Authority against or affecting any of the Seller Disclosure Letter(in respect of the Business), neither the Acquired Entity or the Purchased Subsidiaries concerning employment-related matters or brought by or on behalf of any current or former Business Employee, applicant of the Business, or independent contractor of the Business against or affecting the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements (in respect of the Business), the Acquired Entity or any Purchased Subsidiary except, in each case, as would not, individually or in the aggregate, reasonably be expected to any officer, employee or former employee, consultant or independent contractor. The Seller has provided be material to the Purchaser trueAcquired Entity, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller Purchased Subsidiaries and the Subsidiaries are actively at work (Business, taken as defined in Section 5.12(a)) on the date hereofa whole.
(b) Neither The Seller (in respect of the Seller nor any of its Business), the Acquired Entity and the Purchased Subsidiaries are, and since the date that is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, three years prior to the knowledge date hereof have been, in material compliance with all applicable foreign, federal, state and local Laws respecting employment and employment practices, terms and conditions of employment, including but not limited to wages and hours (including minimum wage, overtime, meal and rest breaks, vacation time, sick leave and work-related expense reimbursement), 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, family and medical leave, occupational health and safety (including any guidance published by any Governmental Authority related to the COVID-19 pandemic), workers’ compensation, plant closings and mass layoffs, and immigration. None of the Seller, threatened the Acquired Entity or the Purchased Subsidiaries has incurred since the date that is three years prior to the date hereof, and, to the Knowledge of the Seller, no circumstances exist under which the Seller, the Acquired Entity or the Purchased Subsidiaries would reasonably be expected to incur, any material liability arising from the failure to pay wages (iincluding overtime wages) unfair labor practice charge and/or payroll taxes (including wage tax and social security premiums), the misclassification of employees as consultants or complaintindependent contractors, labor dispute, labor arbitration proceeding and/or the misclassification of employees as exempt from the requirements of the Fair Labor Standards Act or applicable state or any other matter before foreign Law. To the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees Knowledge of the Seller Seller, no facts exist on the basis of which the Seller, the Acquired Entity, or the Purchased Subsidiaries would reasonably be expected to have incurred, since the date that is three years prior to the date hereof, any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption material liability with respect to such the compliance or non-compliance by any other employer (including any third party vendor or labor supplier, temporary staffing agency, professional employer organization, client or customer) with Laws respecting employment, employment practices and/or terms and conditions of employment. None of the Seller, the Acquired Entity or the Purchased Subsidiaries has furloughed, placed on unpaid leave 97989374_16 (other than as required by Law), terminated the employment of, or materially reduced the compensation or benefits of, 25 or more employees, in each case for any reason relating to COVID-19.
(c) Neither True and complete information as to the Seller nor any name, current job title and current annual base salary, for non-billable employees, or hourly pay rate, for billable employees, for all current Business Employees of its the Seller, the Acquired Entity and the Purchased Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within been provided to the meaning Buyer. No member of the Worker Adjustment and Retraining Notification Senior Leadership Team or Top Twenty Salespeople ("WARN"i) Act to the Knowledge of the Seller, has given written notice of termination of employment or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts disclosed plans to terminate employment with any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment Acquired Entity and the payment of wages and benefits. There are noPurchased Subsidiaries within the 12-month period following the date hereof, and the Seller has no reason to believe there would be any(ii) is employed under a non-immigrant work visa or other work authorization that is limited in duration, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, (iii) to the knowledge Knowledge of the Seller, threatened before since the Department date that is three years prior to the date hereof, has been the subject of Labor any sexual harassment, sexual assault, sexual discrimination or any federal, state other misconduct allegations during his or administrative agency or court against or involving her tenure at the Seller Acquired Entity or any of its the Purchased Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a3.13(a) of the Seller of the Company Disclosure Letter contains Schedule sets forth a true and complete list of (a) all employees of the officers Company and each of the Seller and the its Subsidiaries, specifying their positionalong with the job title, agelocation, length of service and the annual salaryclassification (i.e., bonus and allocation of amounts paid and other benefits provided to each of themexempt or not exempt), respectivelystatus (e.g., and annual rate of compensation and (b) all of the employees (whether part-time, full-time, partseasonal or temporary), bargaining unit (if any), and the hourly or salary rate of compensation of each such employee. Section 3.13(a) of the Company Disclosure Schedule sets forth a complete list of all non-time or otherwise) and employee workers, including all independent contractors that have provided services of any kind to the Company, and each of its Subsidiaries and a description of the Seller service provided by such independent contractors and the Subsidiaries as compensation paid to each such independent contractor.
(b) No key employees or group of key employees of the date hereofCompany, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of themits Subsidiaries, respectively, consulting or other independent contractor fees, together with an appropriate notation next has given notice to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of Parent that such employee or any employee in a group of key employees intends to cease, or is considering ceasing, his or her employment upon or after consummation of the rendering of services by such independent contractor. Transactions.
(c) Except as set forth on in Section 3.16(a3.13(c)(i) of the Seller Company Disclosure LetterSchedules, neither no employee of the Seller nor Company or of any Subsidiary is a party to or bound by any material contractsSubsidiary, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller (i) has provided to the Purchaser true, correct and complete copies of each such an employment agreement, or (ii) is in violation of any term sheet of any patent disclosure agreement, non-competition agreement, or any other document. The Seller has not received restrictive covenant to a claim from any Governmental Entity third party relating to the effect that right of any such employee to be employed by the Seller Company, or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of its Subsidiaries because of the Seller Disclosure Letternature of the business conducted by the Company, or any of its Subsidiaries or to the use of trade secrets or proprietary information of others. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a3.13(c)(ii) of the Seller Company Disclosure LetterSchedules, each current employee has entered into a non-compete, non-solicitation, with the Company. The Company has heretofore provided Parent with copies of all officers and signed agreements with Company Employees identified in this subparagraph.
(d) None of the employees of the Seller and Company or its Subsidiaries is represented in his or her capacity as an employee of the Company or any of its Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) by any labor organization. Neither the Seller Company nor any of its Subsidiaries is a party tohas recognized any labor organization, or bound by, nor has any labor organization been elected as the collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge agent of any employees of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) nor has the Company or any of its Subsidiaries entered into any collective bargaining agreement or union contract recognizing any labor organization as the bargaining agent of any employees. There is no union organization activity or proceeding by a labor union or representative thereof to organize involving any of the employees of the Seller Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened, nor has there ever been union representation involving any of the employees of the Company or any of its Subsidiaries. There is no picketing pending or, to the Knowledge of the Company, threatened, and there are no strikes, slowdowns, work stoppages, other job actions, lockouts, arbitrations, grievances or other labor disputes involving any of the employees of the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened. There are no complaints, charges or claims against the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened that could be brought or filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment or failure to employ by the Company or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesindividual.
(e) The Seller Except as set forth in Section 3.13(e) of the Company Disclosure Schedules, (i) the Company, and each of its Subsidiaries are in compliance in all material respects with all immigration laws applicable Laws and orders relating to the employment andof workers, including all such applicable Laws and orders relating to wages, hours, fair employment practices, discrimination and retaliation, medical or other leave, civil rights, affirmative action, collective bargaining, work authorization and immigration, and (ii) since 2009, there have been no claims, charges, complaints, demands made, or, to the knowledge Company’s Knowledge, threatened to be made, before any Governmental Authority with respect to any alleged violation of any such applicable Laws. Neither the SellerCompany, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or nor any of its SubsidiariesSubsidiaries are presently, nor have they ever been, a party to or otherwise bound by any settlement, stipulation or consent decree with, or citation by, any Governmental Authority relating to such applicable Laws.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran statusExcept set forth in Section 3.13(f) pending or, to the knowledge of the SellerCompany Disclosure Schedules, threatened before Company and each of its Subsidiaries have properly completed a U.S. Citizenship and Immigration Services Form I-9 for each employee and the Equal Employment Opportunity Commission or any federalCompany and each of the Subsidiaries are now, state or local agency or court against or involving and have been for the Seller or any past five (5) years, in compliance with all applicable Laws governing work authorization in the United States covering the employees.
(g) Except as set forth in Section 3.13(g) of the Company Disclosure Schedules, each employee and independent contractor of the Company, and each of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful has been properly classified for all purposes under the Code and ERISA and has been properly classified as either exempt or tortious conduct claim is pending or, to nonexempt under the knowledge Fair Labor Standards Act and its applicable state Law equivalents.
(h) Except as set forth in Section 3.13(h) of the SellerCompany Disclosure Schedules, threatened against there are (i) no contracts or business relationships that would or could cause the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 to be deemed a federal or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action planplan or otherwise comply with affirmative action requirements of applicable Laws, and (ii) within the past five (5) years, no discrimination claim, show-show cause notice, conciliation proceedingProceeding, sanctions sanction or debarment proceedings Proceeding has been filed or is pending or, to the knowledge of the Seller, has been or is threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal federal agency or any comparable state or local foreign agency or court and there have been no desk audit audits or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings reviews pending or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiariesscheduled.
(i) No The Company and its Subsidiaries are in compliance in all material respects with all Laws relating to the employment of labor, including all such Laws relating to wages, hours, the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” law (“WARN”), collective bargaining, discrimination, civil rights, safety and health, workers' ’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax, except for immaterial non-compliance. There has been no “mass layoff” or retaliation claim is pending against “plant closing” (as defined by WARN) with respect to the Seller Company or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in forcesince December 31, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums2007.
Appears in 1 contract
Samples: Merger Agreement (Autoinfo Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(ain Schedule 5.17:
(i) of Neither the Seller Disclosure Letter, neither the Seller Company nor any Subsidiary is of its Subsidiaries are a party to or bound by any material contractscollective bargaining contract, consulting agreements collective labor agreement or termination other contract or severance agreements arrangement with a labor union, trade union or other organization involving any of its employees, or, except for Company Plans and Employee Agreements listed in respect Schedule 5.16(f) is otherwise required (under any legal requirement, under any contract or otherwise) to provide benefits or working conditions beyond the minimum benefits and working conditions required by law to be provided pursuant to rules and regulations of any officerjurisdiction in which the Company and its subsidiaries have employees, including without limitation the Histadrut (General Federation of Labor), the Coordinating Bureau of Economic Organization and the Industrialists' Association, and the Company has not been officially apprised that any petition has been filed or proceeding instituted by an employee or former employeegroup of employees of the Company, consultant or independent contractor. The Seller has provided to the Purchaser trueany of its Subsidiaries, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from with any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) Body seeking recognition of the Seller Disclosure Lettera bargaining representative. Except as set forth in Section 3.16 of the Seller Disclosure LetterSchedule 5.16(f) or (g), neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries is a party have or are subject to, and no employee of the Company or bound byany of its Subsidiaries benefits from, any collective bargaining agreement extension order (tzavei harchava) or other contracts, arrangements, any contract or arrangement with respect to termination of employment. All of the employees of the Company and its subsidiaries are "at will" employees subject to the termination notice provisions included in employment agreements or understandings with a labor union or labor organization that was certified by applicable Law.
(A) To the National Labor Relations Board ("NLRB"). There Company's Knowledge, there is no existinglabor strike, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding slow down or any other matter before stoppage pending or threatened against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, ; (iiB) activity or proceeding by a labor union or representative thereof to organize any employees of neither the Seller or Company nor any of its Subsidiariessubsidiaries has received in the last twenty-four (24) months any demand letters, (iii) certification civil rights charges, suits or decertification question relating to collective bargaining units at the premises drafts of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption suits with respect to such claims made by or on behalf of any of their respective employees which would have a Company Material Adverse Effect; and (C) to the Company's Knowledge there are no pending claims, civil rights charges, suits or drafts of suits with respect to claims made by or on behalf of its employees.
(ciii) Neither All amounts that the Seller Company or any subsidiary is legally or contractually required either (A) to deduct from its employees' salaries or to transfer to such employees' pension or provident, life insurance, incapacity insurance, continuing education fund or other similar fund or (B) to withhold from their employees' salaries and pay to any Governmental Body as required by the Israeli Income Tax Ordinance [New Version] and other applicable laws have, in each case, been duly deducted, transferred, withheld and paid, and neither the Company nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" outstanding obligation to make any such deduction, transfer, withholding or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariespayment.
(div) The Seller Company is not liable for any material payment to any trust or other fund or to any Governmental Body, 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).
(v) The Company and its Subsidiaries are in compliance with all applicable material Laws relating and regulations pertaining to employment and the payment of wages and benefits. There are no, overtime and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage with all Laws and hour laws pending or, Orders relating to the knowledge employment of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiarieslabor.
(eb) The Seller Schedule 5.17(b)(i) contains a true and each complete list as of the date hereof of the employees employed by the Company and it Subsidiaries, indicating the title of and a description of any agreements concerning such employees and a listing of the rate of all current salary and bonus payable by the Company or its Subsidiaries are in compliance to each employee. The Company has made available to Parent a copy of each employment, consulting or independent contractor agreement, confidentiality/assignment of inventions agreement and/or non-competition agreement entered into with all immigration laws relating to employment and, to the knowledge an employee or service provider of the Seller, there are no citations, investigations, administrative proceedings Company or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discriminationExcept as set forth on Schedule 5.17(b)(ii), sexual harassmenteach such consulting agreement entered into by the Company is in the standard form of consulting agreement previously provided to Parent's counsel. To the Knowledge of the Company, retaliation and/or wrongful no Key Employee has any plans to terminate employment or tortious conduct claim is pending or, service with the Company or its Subsidiaries prior to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesEffective Time.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NextWave Wireless Inc.)
Labor and Employment Matters. (a) Section 3.16(a4.11(a) of the Seller Company Disclosure Letter contains Schedule sets forth a true true, correct and complete list of (a) all employees of the officers Company and each Company Subsidiary as of the Seller date of this Agreement, including any employee who is on a leave of absence of any nature, authorized or unauthorized, and sets forth for each such individual the Subsidiaries, specifying their position, age, length of service and the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual salarybase compensation rate; (v) commission, bonus and allocation or other incentive based compensation; (vi) their status as permanent (indefinite) or non-permanent (definite); (vii) location of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation employment; and (bviii) all whether or not the employee is actively at work or on leave of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as absence. As of the date hereof, specifying their annual salaryall compensation, hourly including wages, agecommissions and bonuses, position, status, length due and payable to all employees of service the Company and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting any Company Subsidiary for services performed on or other independent contractor fees, together with an appropriate notation next prior to the name of any officer date hereof have been paid in full (or other accrued in full in the Financial Statements). For each employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on not actively at work, Section 3.16(a4.11(a) of the Seller Company Disclosure LetterSchedule sets out the reason for their absence, neither the Seller nor any Subsidiary is a party length of their absence, and their expected return to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofdate.
(bi) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is are no existing, material Actions pending or, to the knowledge of the SellerCompany, threatened against the Company or any Company Subsidiary by any of their respective current or former employees, independent contractors or other service providers; (iii) neither the Company nor any Company Subsidiary is, nor have been for the past two (2) years, a party to, bound by, or negotiating any collective bargaining agreement or other contract with a union, works council or labor organization (collectively, “Labor Union”) applicable to persons employed by the Company or any Company Subsidiary, nor, to the knowledge of the Company, are there any activities or proceedings of any Labor Union to organize any such employees; (iii) there are no unfair labor practice charge complaints or complaint, labor dispute, labor arbitration proceeding Actions pending against the Company or any other matter Company Subsidiary before the NLRB or any other comparable state agency against or involving the Seller or any Governmental Authority; (iv) no Labor Union holds bargaining rights in respect of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller Company or any of its Subsidiaries, Company Subsidiary; (iiiv) certification or decertification question relating no Labor Union nor other Person has applied to collective bargaining units at the premises have any of the Seller Company or the Company Subsidiaries declared a common or related employer under applicable labor Law; and (vi) there has never been any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage stoppage, lockout, concerted refusal to work overtime or work interruption other similar labor disruption or dispute affecting, or, to the knowledge of the Company, written threat thereof, by or with respect to such employeesany employees of the Company or any Company Subsidiary.
(c) Neither The Company and the Seller nor any Company Subsidiaries are and have been in compliance in all material respects with all applicable Laws relating to employment, including without limitation, employment practices, employment discrimination, human rights, terms and conditions of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of employment, mass layoffs and plant closings (including the Worker Adjustment and Retraining Notification ("WARN") Act of 1988, as amended, or would otherwise trigger notice requirements any similar Laws), joint or liability under common employment, immigration, meal and rest breaks, pay equity, workers’ compensation, family and medical leave, and occupational safety and health requirements, including those related to wages, hours, overtime, collective bargaining and the payment and withholding of Taxes and other sums as required by the appropriate Governmental Authority and are not liable for any state material arrears of wages, Taxes, penalties or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts other sums for failure to comply with any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesforegoing.
(d) Section 4.11(d) of the Company Disclosure Schedule contains a correct and complete list of each consultant, individual independent contractor, leased employee or other individual service provider engaged by the Company or any Company Subsidiary and their fees, commissions, length of engagement, location of services, and whether they are subject to a written contract. Each independent contractor, leased employee or other individual service provider who is disclosed in Section 4.11(d) of the Company Disclosure Schedule has been properly classified as an independent contractor and neither of the Company nor any Company Subsidiary has received any written notice from any Person or Governmental Authority disputing such classification. Neither the Company nor Company Subsidiary has incurred, and no circumstances exist under which the Company or any Company Subsidiary would reasonably be expected to incur, any liability arising from the misclassification of employees as consultants or independent contractors.
(e) There are no outstanding material assessments, penalties, fines, liens, charges, surcharges, liabilities or other amounts due or owing pursuant to any workers’ compensation Law and neither the Company nor any Company Subsidiaries have been assessed or reassessed in any material respect under such Law during the past two (2) years and no audit of the Company or any Company Subsidiary is currently being performed or, to the knowledge of the Company, threatened in writing to be performed pursuant to any applicable workers’ compensation Law.
(f) No allegations of workplace sexual harassment have been made in the past three (3) years against any current or former employee of the Company or of any Company Subsidiary or any current or former officer or director of the Company or of any Company Subsidiary, in each case, in their capacities as current or former representatives of the Company or of any Company Subsidiary. In the past three (3) years, there have been no complaints of sexual harassment reported to the Company’s human resources department nor any Company Subsidiaries’ human resources departments against any current or former employee of the Company or of any Company Subsidiary or any current or former officer or director of the Company or of any Company Subsidiary, in each case, in their capacities as current or former representatives of the Company or any Company Subsidiary, as applicable. In the past three (3) years, neither the Company nor any Company Subsidiary has entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by any current or former employee of the Company or of any Company Subsidiary or any current or former officer or director of the Company or of any Company Subsidiary.
(g) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment Company and the payment Company Subsidiaries have at all relevant times properly classified each provider of wages services to such Company or any Company Subsidiary as an employee or independent contractor, as the case may be, for all purposes, and benefits. neither the Company nor any Company Subsidiary has incurred, and no circumstances exist under which the Company or any Company Subsidiary would reasonably be expected to incur, any liability arising from the misclassification of employees as consultants or independent contractors.
(h) There are nono Actions, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings audits or formal complaints of violations of any federal or state wage and hour laws investigations pending or, to the knowledge of the SellerCompany, threatened before the Department in writing, or written notices of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) violation pending or, to the knowledge of the SellerCompany, threatened before in writing against the Equal Employment Opportunity Commission Company or any federal, state or local agency or court against or involving Company Subsidiary in which the Seller Company or any Company Subsidiary is alleged to be a joint employer with any other Person of its Subsidiaries. No discriminationany other employees, sexual harassment, retaliation and/or wrongful workers or tortious conduct claim is pending or, Persons providing services to the knowledge of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 Company Subsidiary or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries connection with the Office use of Federal Contract Compliance Programs any temporary employees, independent contractors, consultants or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressleased employees.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Business Combination Agreement (Oxus Acquisition Corp.)
Labor and Employment Matters. (a) Except to the extent that disclosure would not be permitted under applicable Laws, including applicable privacy Law and European Union General Data Protection Regulation (EU) 2016/679 (the “GDPR”), Section 3.16(a4.14(a) of the Seller Disclosure Letter contains sets forth a true complete and complete accurate list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereofhereof of (i) each Employee, specifying their (ii) each Employee’s job title, current annual salarysalary or hourly (or other periodic) rate of pay or commission structure, hourly wageswork location, age, position, status, length years of service and leave status and (iii) an indication of the allocation employing entity of annual salaryeach Employee, bonus in each case as shall be supplemented or otherwise amended by the Company and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next delivered to the name Buyer prior to the Closing Date to reflect any resignations, terminations or replacements of such Employees and any new hires after the date hereof (if any).
(b) No Seller (with respect to the Business), Sold Company or Sold Subsidiary has received written notice of any officer unfair labor practice charges or other employee on such list who is subject complaints that are pending or, to the Knowledge of the Company, threatened before the National Labor Relations Board or any similar state, local or foreign Governmental Body. No Seller (with respect to the Business), Sold Company or Sold Subsidiary has received written employment agreement notice of any pending or in progress or, to the Knowledge of the Company, threatened material Actions before the Equal Employment Opportunity Commission or any other written term sheet state, local or other document describing the terms and/or conditions foreign Governmental Body involving allegations of unlawful employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(apractices.
(c) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 4.14(c) of the Seller Disclosure Letter, neither no labor union, works council, other similar labor organization or employee representative represents or has within the past three (3) years represented any Employees or Former Employees in connection with their services to the Business, and no Collective Bargaining Agreement is or has, within the period of the past three (3) years, been binding on any Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors (with respect to compensationEmployees or Former Employees), promotionSold Company or Sold Subsidiary. No Seller, retentionSold Company or Sold Subsidiary has received any written notice within the past three (3) years that any labor representation request is pending or is threatened in writing with respect to any Employees or Former Employees in connection with their services to the Business. To the Knowledge of the Company, terminationthere are and in the past three (3) years there have been no requests or activities by any labor union, severance works council, other labor organization or similar matters employee representative to represent or organize any Employees or Former Employees in connection with their services to the Business. Prior to the date of this Agreement, the Sellers, Sold Companies and Sold Subsidiaries have satisfied all pre-signing legal and contractual obligations to provide notice to, or to enter into any consultation or bargaining process with, any labor union, works council, other labor organization or employee representative, which is representing any Employee, in connection with the execution of this Agreement or the transactions contemplated by this Agreement. As of the Closing, the Sellers, Sold Companies and Sold Subsidiaries will have satisfied all legal and contractual obligations to provide notice to, or enter into any consultation or bargaining process with, any labor union, works council, other labor organization or employee representative that is representing any Employee in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofAgreement.
(bd) Neither There are and in the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board past three ("NLRB"). There is 3) years there have been no existing, pending or, to the knowledge Knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaintstrikes, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdownlockouts, work stoppage stoppages, slowdowns or work interruption other material labor disputes against any Seller (with respect to such employeesthe Business), any Sold Company or any Sold Subsidiary.
(ce) Neither Each Seller (with respect to the Seller nor any of its Subsidiaries Business), Sold Company and Sold Subsidiary is and for the past three (3) years has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order been in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in material compliance with all applicable Laws pertaining to employment and labor, including provisions thereof relating to employment practices, terms and conditions of employment, wages and hours, worker classification, layoffs and reductions in force (including the WARN Act), collective bargaining, employee leave and paid time off, equal opportunity, occupational health and safety, workers’ compensation, discrimination, harassment, immigration, and the payment of wages social security and benefitsother Taxes. There are noExcept as would not result in material Liabilities for any Sold Company or Sold Subsidiary or the Business, each Seller (with respect to Employees, Former Employees and service providers currently providing or who previously provided services to the Business), Sold Company and Sold Subsidiary has fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, expense reimbursements, fees and other compensation that has come due and payable to its Employees, Former Employees, and the Seller has no reason to believe there would be anyother service providers under applicable Law, citations, investigations, administrative proceedings Contract or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariescompany policy.
(f) There are As of the Closing, no investigations, administrative proceedings, charges Sold Company or formal complaints Sold Subsidiary employs any individual who does not devote substantially all of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap his or veteran status) pending or, her working time to the knowledge Business. The individuals set forth on Section 4.14(a) of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any Disclosure Letter devote substantially all of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, their working time to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesBusiness.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) 6.21.1 Section 3.16(a) 6.21.1 of the Seller OMNI Disclosure Letter contains Schedule sets forth a true and complete list of all the following: (a) all each "employee benefit plan," as such term is defined in Section 3(3) of the officers of the Seller and the SubsidiariesERISA (each an "Employee Plan"), specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether fulleach other plan, program, policy, contract or arrangement providing for bonuses, pensions, deferred compensation, stock or stock-timerelated awards, part-time severance pay, salary continuation or otherwise) and similar benefits, hospitalization, medical, dental or disability benefits, life insurance or other employee benefits, or compensation to or for any current or former officers, directors, employees, agents, or independent contractors of the Seller and the Subsidiaries as OMNI or OMNI PRODUCTS ("Employees") or any beneficiaries or dependents of the date hereofany Employee, specifying their annual salarywhether or not insured or funded, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided pursuant to each of them, respectively, consulting which OMNI or other independent contractor fees, together OMNI PRODUCTS has any material liability or constituting an employment or severance agreement or arrangement with an appropriate notation next to the name of any officer or other employee on such list who is subject to director of OMNI or OMNI PRODUCTS.
6.21.2 To OMNI or OMNI PRODUCTS Knowledge, they have established and maintained in all material respects each Employee Plan and Benefit Arrangement in accordance with its terms and in material compliance with all applicable laws, including, but not limited to, ERISA and the Code; and any written employment agreement third party trustee has complied in all material respects in the maintenance of each Employee Plan and Benefit Arrangement with all applicable laws and requirements. To OMNI or OMNI PRODUCTS Knowledge, neither OMNI nor OMNI PRODUCTS nor any of their employees, nor any other written term sheet disqualified person or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in party-in-interest with respect to any officerEmployee Plan, employee has engaged directly or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each indirectly in any "prohibited transaction," as such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on is defined in Section 3.16(a) 4975 of the Seller Disclosure Letter. Except as set forth in Code or Section 3.16 406 of the Seller Disclosure LetterERISA, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance which OMNI or similar matters in connection with the transactions contemplated by this Agreement OMNI PRODUCTS could have or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofhas any material liability.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). 6.21.3 There is are no existing, pending or, to the knowledge of the SellerOMNI or OMNI PRODUCTS Knowledge, threatened (i) unfair labor practice charge proceedings by any Employees or complaintplan participants or the beneficiaries, labor dispute, labor arbitration proceeding spouses or any other matter before the NLRB or any other comparable state agency against or involving the Seller or representatives of any of its Subsidiariesthem, (ii) activity against any Employee Plan or proceeding by a labor union Benefit Arrangement, the assets held thereunder, the trustee of any such assets, or representative thereof to organize any employees of the Seller OMNI or any of its Subsidiaries, (iii) certification or decertification question OMNI PRODUCTS relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the SellerEmployee Plans, any of its Subsidiaries other than ordinary and usual claims for benefits by participants or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefitsbeneficiaries. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the SellerFurthermore, there are no citationspending, investigationsor to OMNI or OMNI PRODUCTS Knowledge, administrative threatened proceedings by any governmental authority of or formal complaints against any Employee Plan or Benefit Arrangement, the trustee of violations any assets held thereunder, or OMNI or OMNI PRODUCTS relating to any of the immigration laws pending Employee Plans or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesBenefit Arrangements.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending 6.21.4 OMNI has made all required contributions under each Employee Plan on a timely basis or, to if not yet due, adequate accruals therefore have been provided for in the knowledge OMNI Financial Statements.
6.21.5 The Merger (either alone or together with any additional or subsequent events) does not constitute an event under any Employee Benefit Plan, Benefit Arrangement or individual employee contract that may result in any payment (whether of severance pay or otherwise), restriction or limitation upon the Sellerassets of any Employee Plan or Benefit Agreement, threatened before the Equal Employment Opportunity Commission acceleration of payment or any federalvesting, state increase in benefits or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAcompensation, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplacerequired funding, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in forceany Employee, or has accrued an adequate liability for such obligationsthe forgiveness of any loan or other commitment of any Employee.
6.21.6 To OMNI's Knowledge, including, without limitation, adequate accruals no amounts paid or payable by OMNI or OMNI PRODUCTS to or with respect to accrued but unreported claims and retroactive insurance premiumsany Employee will fail to be deductible for federal income tax purposes by reason of Section 280G of the Code.
Appears in 1 contract
Samples: Merger Agreement (Creative Medical Development Inc)
Labor and Employment Matters. (a) Section 3.16(aThe Company has delivered to Parent a complete and accurate list (the “Employee List”) setting forth (i) all employees of the Seller Disclosure Letter contains a true and complete list Company or any of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the its Subsidiaries as of the date hereofhereof (the “Company Employees”) together with their titles or positions, specifying their annual salaryjob descriptions, hourly wagesdates of hire, ageregular work location, positionthe aggregate cash compensation paid for the most recently completed fiscal year, exempt or non-exempt status, length of service and the allocation of annual salarybase salary (for exempt employees) or hourly rate (for non-exempt employees), bonus and other amounts paid commission opportunity in effect for the current fiscal year, and accrued and unused vacation, sick and other benefits provided to each of thempaid time off, respectively, consulting visa or other similar permit (where applicable) under which such a Company Employee is working for the Company or any of its Subsidiaries and the dates of issuance and expiration of such visa or other similar permit; and (ii) all consultants and other independent contractor fees, contractors to the Company or any of its Subsidiaries who have rendered services to the Company or any of its Subsidiaries within the last twelve (12) months together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing aggregate cash compensation paid for the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractormost recently completed fiscal year. Except as set forth on Section 3.16(a) in the Employee List, the employment of each of the Seller Disclosure LetterCompany Employees is terminable at will, neither without cause or prior notice and without liability. To the Seller Company’s Knowledge, no executive or management level employee or group of employees or independent consultant of the Company or any of its Subsidiaries has any plans to terminate employment with or services to the Company or any of its Subsidiaries.
(b) There are no and have not, in the past three (3) years, been any controversies or labor disputes, labor slowdowns or union organization activities, picketing or strikes pending or, to the Company’s Knowledge, threatened between the Company or any of its Subsidiaries and any of the Company Employees. None of the Company Employees belongs to any union or collective bargaining unit. There is not pending any demand for recognition or any other request or demand from a labor organization for representative status with respect to Company Employees. No labor union has been certified by the National Labor Relations Board (or similar foreign body) as bargaining agent for any of the Company Employees. Each Company Employee has been properly classified as exempt or non-exempt under applicable federal and state laws. Neither the Company nor any Subsidiary is a party to of its Subsidiaries has received any claim or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim notice from any Governmental Entity to the effect that the Seller or any Subsidiary it has improperly classified the exempt/non-exempt status of any Company Employee, and, to the Company’s Knowledge, there is no basis for any such claim. No individual classified as of the date hereof by the Company or any of its Subsidiaries as an independent contractor or other non-employee status would be deemed an employee or common-law employee under any person named on Section 3.16(a) Employee Benefit Plan or applicable Law. The Company and each of its Subsidiaries have complied in all material respects with all applicable foreign, state and federal equal employment opportunity, discrimination in employment, leave, reasonable accommodation, confidentiality, wage and hour laws, occupational health and safety and any other Law related to employment or working conditions, including the Worker Adjustment and Retraining Notification Act of 1988, as amended (“WARN Act”), and the verification requirements and the recordkeeping requirements of the Seller Disclosure Letter. Except as set forth in Section 3.16 Immigration Reform and Control Act of 1986 or its successor (“IRCA”), and are not liable for any arrears of wages or any taxes or penalties for failure to comply with any of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwiseforegoing. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries is has experienced a party to, “plant closing,” “business closing,” or bound by, “mass layoff” (as defined in the WARN Act or any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge similar Law) affecting any site of employment of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding Company or any other matter before of its Subsidiaries or one or more facilities or operating units within any site of employment or facility of the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, without complying with the WARN Act and any similar Law, and, during the ninety (ii) activity or proceeding by a labor union or representative thereof to organize any employees of 90)-day period preceding the Seller date hereof, Company Employees have not suffered an “employment loss” (as defined in the WARN Act or any of its Subsidiaries, (iiisimilar Law) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, attributable to the knowledge of the Seller, threatened before the Department of Labor Company or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.its
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) Except where the failure to be in compliance would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary is in compliance with all Applicable Law and agreements respecting hiring, employment and employment practices, terms and conditions of employment, harassment, retaliation, reasonable accommodations, leaves of absence, occupational safety and health and workers’ compensation, employee classification and wages and hours, engagement of independent contractors (including the appropriate classification of the Seller Disclosure Letter contains a true same), payroll taxes, redundancy, “mass layoffs,” “plant closings” and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors immigration with respect to compensationCompany Employees, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, including to the knowledge of the Sellerextent applicable, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementof 1988, arbitration or court decision or governmental order in any way limits or restricts any the Fair Labor Standards Act, as amended, the Immigration Reform and Control Act, Title VII of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights ActsAct of 1964, as amended, the Equal Pay ActAct of 1967, as amended, the Age Discrimination in Employment ActAct of 1967, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and state anti-discrimination laws. As of the date of this Agreement, except as would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Company’s Knowledge, there are no charges, complaints, audits or investigations pending or scheduled by any applicable whistleblower statutesGovernmental Authority pertaining to the employment practices or actions of the Company or any Company Subsidiary or otherwise threatened against the Company or any Company Subsidiary, (ii) under to the Company’s Knowledge, no written complaints or charges relating to employment practices or actions of the Company or any state Company Subsidiary have been made to any Governmental Authority or federal law submitted to the Company or any Company Subsidiary, and (iii) neither the Company nor any of the Company Subsidiaries has any direct or indirect liability with respect to any misclassification of any person as an independent contractor or contingent worker rather than as an “employee,” or with respect to any Company Employee leased from another employer.
(b) Neither the Company nor any Company Subsidiary is a party to, or otherwise bound by, any collective bargaining agreement, Contract or other agreement or understanding with a labor union, organization, group or association, works council or other employee representative body. As of the date hereof, none of the Company Employees are represented by a labor organization, work council or trade union. To the Company’s Knowledge as of the date hereof, (i) there is no organizing activity, Proceeding, election petition, union card signing or other union activity, or union corporate campaigns of or by any labor organization, trade union, or work council directed at the Company or any of its Subsidiaries or any Company Employees and (ii) neither the Company nor any Company Subsidiary is subject to any charge, demand, petition or representation proceeding seeking to compel, require or demand it to bargain with any labor union, organization, group or association, works council or other employee representative body. There is no pending or, to the knowledge Company’s Knowledge, threatened, labor strike, lockout, slowdown or work stoppage involving the Company or any Company Subsidiary or their employees, nor have there been any such labor strikes, lockouts, slowdowns or work stoppages since the Distribution Date to the date hereof nor, to the Company’s Knowledge as of the Sellerdate hereof, threatened against between January 1, 2016 and the Seller or any Distribution Date with respect to the predecessors of the Company and its SubsidiariesSubsidiaries with respect to the Company Business.
(gc) If Within the Seller past ninety (90) days, neither the Company nor any of the Company Subsidiaries has implemented any plant closing or layoff of employees that implicated the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progresssimilar Applicable Law.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Bioverativ Inc.)
Labor and Employment Matters. (a) Section 3.16(aSchedule 4.13(a) sets forth a list of, as of the Seller Disclosure Letter contains a true and complete list of October 31, 2020, (ai) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together Group Companies with an appropriate notation next to the name of the employing company of each and the country and state in which the employee or contractor normally works, (ii) the position, date of hire, current annual rate of compensation (or with respect to employees compensated on an hourly or per diem basis, the hourly or per diem rate of compensation), including any officer bonus, contingent or other employee on deferred compensation, and estimated or target annual incentive compensation of each such list who is subject to any written employment agreement person, (iii) the exempt or non-exempt classification of such person under the Fair Labor Standards Act and any other written term sheet Applicable Law regarding the payment of wages, (iv) the total annual compensation for each officer of each Group Company and each Key Employee during the fiscal year ending December 31, 2019 (including any bonus, contingent or other document describing deferred compensation), and (v) the terms and/or conditions of employment of such employee or current total annual compensation paid by a Group Company to each member of the rendering board of services by directors or board or managers of each Group Company in such independent contractor. Except as set forth on Section 3.16(acapacity (including any bonus, contingent or deferred compensation).
(b) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary No Group Company is a party to or otherwise bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or relationship with any labor union, works council, trade association or other contractsemployee organization. Since December 31, arrangements2017, agreements no Group Company: (i) has experienced any strikes, work stoppages, walkouts or understandings with a other material labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There disputes and no such dispute is no existing, pending or, to the knowledge of the SellerCompany’s Knowledge, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiariesthreatened, (ii) activity or proceeding by a has committed any material unfair labor union or representative thereof to organize any employees of the Seller or any of its Subsidiariespractice, (iii) certification to the Company’s Knowledge, has experienced any union organizational or decertification question relating activities and no such activities are currently underway or threatened by, on behalf of or against any labor union, works council, trade association or other employee organization with respect to collective bargaining units at the premises employees of the Seller or any of its Subsidiaries or Group Companies; (iv) lockout, strike, organized slowdown, work stoppage has implemented any plant closing or work interruption with respect to such employees.
(c) Neither the Seller nor any layoff of its Subsidiaries has taken any action employees that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of could implicate the Worker Adjustment and Retraining Notification ("WARN") Act of 1988, as amended, or would otherwise trigger notice requirements or liability under any state similar foreign, state, provincial or local plant closing notice law. No agreementor mass layoff Law (collectively, arbitration the “WARN Act”); or court decision or governmental order (v) has been subject to any material pending or, to the Company’s Knowledge, threatened, employment-related Proceeding in any way limits forum, relating to an alleged violation or restricts breach by any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller Group Company or any of their respective officers or directors of any Law, regulation or Contract.
(c) Except as would not result in material Liability for any Group Company, each Group Company has timely paid all wages, salaries, wage premiums, bonuses, commissions, fees, and other compensation due and payable to its Subsidiariescurrent and former employees and independent contractors pursuant to applicable Law, Contract or policy.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and As of the payment date hereof, except as set forth on Schedule 4.13(d), (i) no officer of wages and benefits. There are noany Group Company, no Key Employee, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings group of employees or formal complaints of violations independent contractors of any federal Group Company (including salespersons) has informed any Group Company in writing of any plan to terminate employment with or state wage services for any Group Company, and hour laws pending or, (ii) to the knowledge Company’s Knowledge, no officer of any Group Company and no Key Employee has any plans to terminate employment with or services for any Group Company, in either case, within the Seller, threatened before first twelve (12) months following the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesClosing Date.
(e) The Seller and Except as set forth on Schedule 4.13(e), each of its Subsidiaries are Group Company is and, since December 31, 2017, has been in compliance in all material respects with all immigration laws Laws relating to employment andor the workplace, including provisions relating to the knowledge of the Sellerwages, there are no citationshours, investigationsemployee classification, administrative proceedings collective bargaining, safety and health, work authorization, equal employment opportunity, paid and/or unpaid leave, immigration, U.S. or formal complaints of violations of the immigration laws pending foreign visa requirements, unemployment compensation, worker’s compensation, employee privacy and right to know and discrimination against race, color, national origin, religious creed, physical or threatened before the Immigration and Naturalization Service or any federalmental disability, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religionancestry, medical condition, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy orientation or other claim (including but not limited to violations of ground protected by applicable Law. To the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action planCompany’s Knowledge, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, employee has been threatened retaliated against for raising an issue regarding the Seller or any of its Subsidiaries Company’s compliance with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.Applicable
Appears in 1 contract
Samples: Merger Agreement (PAE Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as As of the date hereofof this Agreement, specifying their annual salarythere are no material controversies pending or, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name knowledge of any officer or other employee on such list who is subject to any written employment agreement the Company, threatened between the Company or any other written term sheet or other document describing the terms and/or conditions Company Subsidiary and any of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee their respective present or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect that have had, or would reasonably be expected to compensationhave, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofa Material Adverse Effect.
(b) Neither the Seller Company nor any of its Subsidiaries Company Subsidiary is a party to, or bound by, any collective bargaining agreement or other contractsContract with any labor union, arrangements, agreements or understandings with a labor union or labor organization that was certified or work council (each a “Labor Agreement”) applicable to the Company or any Company Subsidiary; and, to the knowledge of the Company none of the employees or independent contractors of the Company or any Company Subsidiary is represented by any union, works council, or any other labor organization. To the National knowledge of the Company, since January 1, 2020, there have been no labor organizing activities with respect to any employees or independent contractors of the Company or any Company Subsidiary.
(c) As of the date of this Agreement, there are no labor grievances filed pursuant to any Labor Relations Board ("NLRB")Agreement pending against the Company or any Company Subsidiary. There is Since January 1, 2020, there have been no existingunfair labor practice complaints pending, pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaintthreatened, labor dispute, labor arbitration proceeding against the Company or any other matter Company Subsidiary before the NLRB National Labor Relations Board or any court, tribunal or other comparable state agency against or involving the Seller Governmental Authority of competent jurisdiction, or any of its Subsidiaries, (ii) activity or proceeding by a labor current union or representative thereof to organize any representation questions involving employees of the Seller Company or any of its SubsidiariesCompany Subsidiary that have had, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementreasonably be expected to have, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesa Material Adverse Effect.
(d) The Seller Since January 1, 2020, there has been no actual or, to the knowledge of the Company, threatened strike, slowdown, work stoppage, picketing, handbilling, lockout or any other material labor dispute, or, to the knowledge of the Company, threat thereof, against or affecting the Company or any Company Subsidiary that has had, or would reasonably be expected to have, a Material Adverse Effect. No consent of any labor or trade union is required to consummate any of the Transactions. There is no obligation to inform, consult or obtain consent in advance of or simultaneously with the Transactions of any works council, employee representatives or other representative bodies in order to consummate the Transactions, except as set forth on Section 3.11(d) of the Disclosure Schedule.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its the Company Subsidiaries are in compliance with all applicable Laws relating to the employment of labor, including those related to wages, hours, collective bargaining, equal employment opportunity, occupational health and the payment safety, immigration, individual and collective consultation, notice of wages and benefits. There are notermination, and redundancy, and are not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the Seller has foregoing. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no reason to believe there would be any, citations, investigations, administrative proceedings charge or formal complaints of violations of any federal or state wage and hour laws other Action pending or, to the knowledge of the SellerCompany, threatened before the Department of Labor U.S. Equal Employment Opportunity Commission (the “EEOC”), any court, or any federal, state or administrative agency or court against or involving other Governmental Authority of competent jurisdiction with respect to the Seller employment practices of the Company or any Company Subsidiary, except as described on Section 3.11(e) of its Subsidiaries.
(e) The Seller and each the Disclosure Schedule. Neither the Company nor any Company Subsidiary is a party to, or otherwise bound by, any consent decree with, or citation by, any the EEOC or any other Governmental Authority of its Subsidiaries are in compliance with all immigration laws competent jurisdiction relating to employees or employment andpractices. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2020, neither the Company nor any Company Subsidiary has received any notice of intent by the EEOC or any other Governmental Authority of competent jurisdiction responsible for the enforcement of labor or employment Laws to conduct an investigation or inquiry relating to the Company or any Company Subsidiary, and to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action planCompany, no discrimination claim, show-cause notice, conciliation proceeding, sanctions such investigation or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review inquiry is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Anaplan, Inc.)
Labor and Employment Matters. (a) Section 3.16(a3.11(a)(1) of the Seller Disclosure Letter contains a true and complete list of Schedules identifies: (ai) all of the directors and officers of the Seller Company and its Subsidiaries and their respective titles; (ii) all employees and consultants employed or engaged by the Company or its Subsidiaries; and (iii) for each individual identified in clause (i) or (ii), such Person’s annual base salary and bonus opportunity for 2013 and 2014, current job title and date of hire. To the Company’s knowledge, all persons listed on Section 3.11(a)(1) of the Disclosure Schedules are lawfully authorized to work in the United States according to United States immigration Laws. Section 3.11(a)(2) of the Disclosure Schedules sets forth a true complete and accurate list, as of the most recent regular payroll date preceding the date of this Agreement, of all accrued vacation time for all employees of the Company or its Subsidiaries and the Subsidiaries, specifying their position, age, length value of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to all such accrued vacation time based on each of them, respectively, and annual rate of such employees’ compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries level then in effect as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letterthis Agreement. Except as set forth in Section 3.16 3.11(a)(3) of the Seller Disclosure LetterSchedules, neither the Seller Company and its Subsidiaries have not promised verbally or in writing to increase the compensation of any employee or consultant or provide any new compensation (including base salaries, bonus amounts or equity awards).
(b) Except as set forth on Section 3.11(b) of the Disclosure Schedules, there are no Contracts providing for a notice period prior to termination, acceleration benefits or severance benefits between the Company, on the one hand, and any current or former Holder, Affiliate, officer, director, employee, consultant, labor organization or other representative of any of the Company’s employees, on the other hand, nor is any such Contract presently being negotiated.
(c) Neither the Company nor any Subsidiary has made any verbal commitments of its Subsidiaries is a party to any such officerslabor or collective bargaining Contract that pertains to employees of the Company or any of its Subsidiaries. To the knowledge of the Company, there are no, and during the past five years have been no, organizing activities or collective bargaining arrangements that could affect the Company or any of its Subsidiaries pending or under discussion with any labor organization or group of employees or former independent contractors of the Company or any of its Subsidiaries. There is no, and during the past five years there has been no, labor dispute, employment-related grievance, strike, controversy, slowdown, work stoppage or lockout pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, nor is there any basis for any of the foregoing.
(d) The Company and its Subsidiaries have complied in all material respects with all applicable Laws, Contracts and policies respecting employment, including discrimination or harassment in employment, terms and conditions of employment, termination of employment, wages, overtime classification, hours, occupational safety and health, employee whistle-blowing, immigration, employee privacy, employment practices and classification of employees, consultants and independent contractors, including the obligations of the U.S. Worker Adjustment and Retraining Notification Act of 1988, as amended and any similar state or independent contractors local Law, and all other notification and bargaining obligations arising under Law or otherwise. Neither the Company nor any of its Subsidiaries is engaged in any unfair labor practice, as defined in the National Labor Relations Act or other applicable Laws. No unfair labor practice or labor charge or complaint is pending or, to the knowledge of the Company, threatened with respect to compensationthe Company or any of its Subsidiaries before the National Labor Relations Board, promotionthe Equal Employment Opportunity Commission or any other Governmental Authority. None of the Company’s or its Subsidiaries’ employment policies or practices are currently being audited or investigated by any Governmental Authority or court. Neither the Company nor any of its Subsidiaries is liable for any severance pay or other payments to any employee or former employee arising from the termination of employment, retentionnor will the Company or any Subsidiary have any liability under any benefit or severance policy, terminationpractice, severance Contract, plan, program or similar matters Law which exists or arises, or may be deemed to exist or arise, as a result of or in connection with the transactions contemplated by this Agreement hereunder or otherwise. Except as indicated on Section 3.16(a) a result of the Seller Disclosure Letter, all officers and employees termination by the Company or any Subsidiary of any persons employed by the Seller and Company or any Subsidiary on or prior to the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofEffective Time.
(be) Neither the Seller Company nor any of its Subsidiaries is a party to, or otherwise bound by, any collective bargaining agreement consent decree with, or other contractscitation by, arrangements, agreements any Governmental Authority relating to employees or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB")employment practices. There is no existing, pending or, to the knowledge None of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the SellerCompany, any of its Subsidiaries or the Purchaser from relocating or closing any of its or their executive officers has received within the operations past five years any notice of intent by any Governmental Authority responsible for the Seller enforcement of labor or employment laws to conduct an investigation relating to the Company or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action planCompany, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review such investigation is in progress.
(hf) There are no citations, investigations, administrative proceedings All amounts owed by the Company or formal complaints of violations of local, state any Subsidiary to any current or federal occupational safety and health laws pending or, to former employee or consultant has been timely paid in accordance with applicable Law or is properly reflected in the Financial Statements.
(g) To the knowledge of the SellerCompany, threatened before no current employee or officer of the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller Company or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in forceintends, or has accrued an adequate liability for is expected, to terminate his employment relationship with such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsentity following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (NICE Ltd.)
Labor and Employment Matters. (a) Section 3.16(a) No employee of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time STX or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, covered by an effective or bound by, any pending collective bargaining agreement or other contracts, arrangements, agreements or understandings labor-related agreement with a labor union union, works council, or other labor organization, and, to the Knowledge of STX, there has not since January 1, 2017 been any activity on behalf of any labor union, works council, or other labor organization that was certified by or similar employee group to organize any employees of STX or any of its Subsidiaries. Except for matters that, individually or in the National Labor Relations Board aggregate, would not reasonably be expected to be material to STX and its Subsidiaries, taken as a whole, ("NLRB"). There is i) there are no existing, (and have not been during the three (3)-year period preceding the date of this Agreement) pending or, to the knowledge Knowledge of the SellerSTX, threatened (i) unfair labor practice charge threatened, strikes, work stoppages, slowdowns or complaint, labor dispute, labor arbitration proceeding or lockouts with respect to any other matter before the NLRB or any other comparable state agency against or involving the Seller employees of STX or any of its Subsidiaries, and (ii) activity there is no (and has not been during the three (3)-year period preceding the date of this Agreement) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding by pending or, to the Knowledge of STX, threatened against STX or any of its Subsidiaries. Except as, individually or in the aggregate, would not reasonably be expected to be material to STX and its Subsidiaries, taken as a labor union whole, none of STX or representative thereof to organize any employees of its Subsidiaries has received written notice during the three (3)-year period preceding the date of this Agreement of the Seller intent of any Governmental Authority responsible for the enforcement of labor, employment, occupational health and safety or workplace safety and workers compensation insurance laws to conduct an investigation of STX or any of its Subsidiaries and, to the Knowledge of STX, no such investigation is in progress. Each of STX and its Subsidiaries has satisfied all notice, consultation, bargaining, and consent obligations owed to its employees and its employees’ representatives under Applicable Law or labor Contract.
(b) Except as, individually or in the aggregate, would not reasonably be expected to be material to STX and its Subsidiaries, taken as a whole, since January 1, 2017, STX and its Subsidiaries have been in compliance with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, workers compensation, equal employment opportunity, age and disability discrimination, immigration control, employee and worker classification, information privacy and security, payment and withholding of Taxes and continuation coverage with respect to group health plans. Within the three (3)-year period preceding the date of this Agreement, there has been no material written claim (internally or otherwise) by any current or former employee or any current or former independent contractor of STX or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises by any applicant for employment with STX or its Subsidiaries, that an officer, director, or senior management employee of the Seller STX or its Subsidiaries has engaged in sexual harassment or similar misconduct. None of STX or any of its Subsidiaries has entered into any material settlement agreement related to allegations of sexual harassment or (iv) lockoutmisconduct by any officer, strike, organized slowdown, work stoppage director or work interruption with respect to senior management employee of such employeesentity.
(c) Neither Within the Seller three (3)-year period preceding the date of this Agreement, (i) neither STX nor any of its Subsidiaries has taken any action that would constitute effectuated a "Mass Layoff" or "Plant Closing" within the meaning of “plant closing” (as defined in the Worker Adjustment Retraining and Retraining Notification Act of 1988, as amended ("WARN"the “WARN Act”)) Act affecting any site of employment or would otherwise trigger notice requirements one or liability under more facilities or operating units within any state site of employment or local plant closing notice law. No agreementfacility, arbitration or court decision or governmental order (ii) there has not occurred a “mass layoff” (as defined in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(dWARN Act) The Seller and its Subsidiaries are in compliance connection with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller STX or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or affecting any other federal law relating to site of employment or one or more facilities or operating units within any comparable state site of employment or local fair employment practices act regulating discrimination in the workplace, facility and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutesiii) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or neither STX nor any of its Subsidiaries is a federalhas engaged in layoffs or employment terminations sufficient in number to trigger any unsatisfied obligations under any similar state, state local or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressforeign Applicable Law.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true STFC and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the its Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a neither party to, bound by or bound by, in the process of negotiating any collective bargaining agreement or other contractslabor-related agreement or arrangement with any labor union, arrangementstrade union, agreements labor organization or understandings other employee representative body and no employees of STFC or its Subsidiaries are represented by any labor union, labor organization or works council with respect to their employment with STFC or its Subsidiaries. To the Knowledge of STFC, there have been no labor union organizing activities with respect to any employees of STFC or its Subsidiaries.
(b) In the last three (3) years, none of STFC or any of its Subsidiaries has entered into a settlement agreement with a labor union current or labor organization that was certified former officer, employee or independent contractor of STFC or its Subsidiaries who made allegations of discrimination or sexual harassment by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened either
(i) unfair labor practice charge an officer of STFC or complaintits Subsidiaries or (ii) an employee of STFC or its Subsidiaries at the level of Director or above. To the Knowledge of STFC, labor disputein the last three (3) years, labor arbitration proceeding there have been no formal allegations of discrimination or sexual harassment made against (A) any officer of STFC or its Subsidiaries or (B) an employee of STFC or its Subsidiaries at the level of Director or above.
(c) To the Knowledge of STFC, no current employee of STFC or its Subsidiaries, who is at the level of Director or above, intends to terminate his or her employment with STFC or any other matter before of its Subsidiaries prior to the NLRB twelve (12) month anniversary of the Closing.
(d) Except as would not, individually or any other comparable state agency against in the aggregate, have a STFC Material Adverse Effect, each release of employment claims in favor of STFC and its Subsidiaries obtained from an employee of STFC or involving its Subsidiaries since December 31, 2018 is effective and binding to release all employment claims purported to be released therein by such employee, subject to applicable Law.
(e) Except as would not, individually or in the Seller aggregate, reasonably be expected to result in material Liability to SAM or any of its Subsidiaries, to the Knowledge of STFC, (iii) activity or proceeding by a labor union or representative thereof each individual who is currently providing services to organize any employees of the Seller STFC or any of its Subsidiaries, (iii) certification or decertification question relating who provided services to collective bargaining units at the premises of the Seller STFC or any of its Subsidiaries since December 31, 2018, as an independent contractor or (iv) lockout, strike, organized slowdown, work stoppage consultant is or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" was properly classified and properly treated as an independent contractor or "Plant Closing" within the meaning of the Worker Adjustment consultant by STFC and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
, (dii) The Seller and its Subsidiaries are in compliance with all applicable Laws relating each individual who is currently providing services to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller STFC or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAthrough a third-party service provider, or any other federal law relating who provided services to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller STFC or any of its Subsidiaries through a third-party service provider since December 31, 2018, is a federal, state not or local contractor obligated to develop and maintain was not an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge employee of the Seller, has been threatened against the Seller STFC or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.and
Appears in 1 contract
Samples: Merger Agreement
Labor and Employment Matters. (a) Section 3.16(aNone of ARC, the Acquired Companies or any of their Affiliates (with respect to the Acquired Business) is or has been within the last six years a party to any collective bargaining agreement or other agreements or arrangements with any labor union or works council applicable to Company Employees or other Persons employed by the Acquired Companies, nor is any such agreement or arrangement currently being negotiated, nor, to the Knowledge of the Seller Disclosure Letter contains Sellers, are there any such employees represented by a true and complete list works council or a labor organization with respect to their employment or are there any unions organizing activities or proceedings of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided any labor union to each of them, respectively, and annual rate of compensation and organize any such employees.
(b) all Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no material work stoppage, slowdown or labor strike against the Acquired Companies is pending or, to the Knowledge of the employees Sellers, threatened.
(whether full-time, part-time or otherwisec) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 3.14(c) of the Seller Sellers Disclosure LetterLetter and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since January 1, 2004, neither the Seller Acquired Companies nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors of their Affiliates (with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(aAcquired Business) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or have Liability with respect to any other matter before the NLRB or misclassification of any other comparable state agency against or involving the Seller or any of its SubsidiariesPersons as an independent contractor rather than as an employee, (ii) activity or proceeding by a have not been in compliance with all applicable foreign, federal, state and local Laws, rules and regulations respecting employment, employment practices, labor union or representative thereof relations, employment discrimination, health and safety, terms and conditions of employment and wages and hours, in each case, with respect to organize any employees of the Seller or any of its Subsidiariestheir employees, and (iii) certification have received any written remedial order or decertification question relating to collective bargaining units at the premises notice of offense under applicable occupational health and safety Laws.
(d) Except as set forth in Section 3.14(d) of the Seller Sellers Disclosure Letter and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Acquired Companies nor any of its Subsidiaries or their Affiliates (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(cthe Acquired Business) Neither have incurred in the Seller nor last three years any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" Liability or "Plant Closing" within the meaning of obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder ("WARN") Act the “WARN Act”), or would otherwise trigger notice requirements or liability under any similar state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its SubsidiariesLaw which remains unsatisfied.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Transaction Agreement (Affordable Residential Communities Inc)
Labor and Employment Matters. (a) Section 3.16(a3.11(a) of the Seller Company Disclosure Letter contains a true and complete list of (a) Schedule lists all employees of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service Subsidiaries and designates each employee by the annual salary, bonus correct employer and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and business division for which the employee primarily performs services.
(b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on disclosed in Section 3.16(a3.11(b) of the Seller Company Disclosure LetterSchedule, neither the Seller Company nor any Subsidiary is a party to any collective bargaining agreement or bound other labor union contract applicable to persons employed by the Company or any material contractsSubsidiary, consulting agreements nor, to the knowledge of the Company, are there any activities or termination proceedings of any labor union to organize any such employees. Except as disclosed in Section 3.11(b) of the Company Disclosure Schedule, as of the date hereof, there are no unfair labor practice complaints pending against the Company or severance agreements any Subsidiary before the National Labor Relations Board or any other Governmental Authority or any current union representation questions involving employees of the Company or any Subsidiary. As of the date hereof, there is no strike, controversy, slowdown, work stoppage or lockout occurring, or, to the knowledge of the Company, any threat thereof in writing, by or with respect to any officer, employee employees of the Company or former employee, consultant or independent contractor. any Subsidiary.
(c) The Seller has provided Company and its Subsidiaries are in compliance in all material respects with all applicable Laws relating to the Purchaser trueemployment of labor, correct including those related to wages, hours, immigration and complete copies naturalization, collective bargaining and the payment and withholding of each such employment agreement, term sheet or taxes and other document. The Seller has not received a claim from any sums as required by the appropriate Governmental Entity Authority and have withheld and paid to the effect that 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 Seller Company or any Subsidiary has improperly classified as an independent contractor and are not liable for any person named on Section 3.16(a) arrears of wages, taxes, penalties or other sums for failure to comply with any of the Seller Disclosure Letterforegoing. Except as set forth The Company and its Subsidiaries have paid in Section 3.16 full to all employees or adequately accrued for in accordance with GAAP consistently applied all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees and there is no claim with respect to payment of wages, salary or overtime pay that has been asserted or is now pending or threatened before any Governmental Authority with respect to any persons currently or formerly employed by the Seller Disclosure Letter, neither Company or any Subsidiary. Neither the Seller Company nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or otherwise bound by, any collective bargaining agreement consent decree with, or other contractscitation by, arrangementsany Governmental Authority relating to employees or employment practices. Except as disclosed in Section 3.11(c) of the Company Disclosure Schedule, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There there is no existing, charge or proceeding with respect to a violation of any occupational safety or health standards that has been asserted or is now pending or, to the knowledge of the SellerCompany, threatened (iwith respect to the Company. Except as disclosed in Section 3.11(c) unfair labor practice of the Company Disclosure Schedule, there is no charge of discrimination in employment or complaintemployment practices, labor disputefor any reason, labor arbitration proceeding including, without limitation, age, gender, race, religion or other legally protected category, which has been asserted or is now pending or threatened before the United States Equal Employment Opportunity Commission, or any other matter before Governmental Authority in any jurisdiction in which the NLRB Company or any other comparable state agency against Subsidiary has employed or involving the Seller or employ any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesperson.
(d) The Seller Company has entered into employment agreements with each of Frank W. Getman Jr. and its Subsidiaries are in compliance Anthony M. Callendrello, xx xxxxxxxxxxxxx the fxxxx xxxxxxxx xxxxxx xx Annex B and Annex C (the "Surviving Corporation Employment Agreements"), with all applicable Laws relating such Surviving Corporation Employment Agreements to employment become effective at the Effective Time, provided however, that the effectiveness of such Surviving Corporation Employment Agreements shall be conditioned upon the acceptance of the Shares pursuant to the Offer and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge completion of the Seller, threatened before Merger. Upon the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge effectiveness of the SellerSurviving Corporation Employment Agreements, there are no citations, investigations, administrative proceedings or formal complaints of violations of any other employment agreements between the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 and Messrs. Getman or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesCallendrello shall be deemed terminaxxx.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as As of the date hereof, specifying their annual the Company and its Subsidiaries employ 139 full-time employees and one part-time employee (including any employees who are employed by the Company or one of its Subsidiaries through an outside agency or service provider) (collectively, the “Employees”) and engage six individuals as consultants or independent contractors (the “Workers”). Attached as Section 2.16 of the Company Disclosure Schedule is a detailed description of all compensation, including salary, hourly wagesbonus, age, position, status, length of service severance obligations and the allocation of annual salary, bonus deferred compensation paid or payable for each Employee and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or Worker of the rendering Company or one of services by such independent contractor. Except its Subsidiaries as set forth on Section 3.16(a) of the Seller Disclosure LetterMarch 15, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter2012. Except as set forth in Section 3.16 2.16(a) of the Seller Company Disclosure LetterSchedule, neither the Seller Company nor any Subsidiary of its Subsidiaries has made in effect any verbal commitments to any such officersemployment agreements, employees or former employeesconsulting agreements, consultants or independent contractors with respect to deferred compensation, promotionpension or retirement agreements or arrangements or labor or collective bargaining agreements, retention, termination, severance written or similar matters in connection with the transactions contemplated by this Agreement or otherwiseoral. Except as indicated on set forth in Section 3.16(a2.16(a) of the Seller Company Disclosure LetterSchedule, all officers and employees each employment agreement of the Seller Company or any of its Subsidiaries currently in effect includes restrictive covenants, including non-compete obligations, non-solicitation obligations, and the Subsidiaries are actively at work (confidentiality obligations. Except as defined set forth in Section 5.12(a)2.16(a) on of the date hereofCompany Disclosure Schedule, the Company has provided a copy of its employee handbook, which contains confidentiality obligations, to each person that is or was an Employee of the Company or any of its Subsidiaries in the past three years.
(b) Except as set forth in Section 2.16(b)(i) of the Company Disclosure Schedule, each Key Employee identified on Schedule 2.16(b)(ii) is a full-time employee who is expected to devote substantially all of his or her business time (other than vacation and personal time taken in accordance with the terms of the applicable Employee Benefit Program (as defined below)) to the conduct of the Company’s and/or such Subsidiary’s business. Neither the Seller Company nor any of its Subsidiaries has received notice that any Key Employee is planning to work less than full-time in the future. Except as set forth in Section 2.16(b)(ii) of the Company Disclosure Schedule, the Company has no Knowledge that any Key Employee presently intends to terminate his or her employment with the Company or its Subsidiary, and neither the Company nor any such Subsidiary has any present intention to terminate the employment of any such individual. Neither the Company nor any of its Subsidiaries is a party todelinquent in payments to any of its Employees or Workers for any wages, salaries, commissions, bonuses, or bound byother direct compensation for any service performed for the Company or such Subsidiary to the date hereof or amounts required to be reimbursed to such Employees or Workers.
(c) The Company and its Subsidiaries are, any collective bargaining agreement or other contractsand during the five year period prior to the date of this Agreement, arrangementshave been in compliance in all material respects with all applicable Laws respecting labor, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB")employment, fair employment practices, terms and conditions of employment, occupational safety and health, and wages and hours. There is are no existing, formal charges of employment discrimination or unfair labor practices that are pending or, to the knowledge Knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees Subsidiary of the Seller Company (including the resignation of such Key Employee), nor are there any strikes, slowdowns, stoppages of work, industrial actions or any other concerted interference with normal operations existing of its Subsidiariesa material nature that are pending or, (iii) certification or decertification question relating to collective bargaining units at the premises Knowledge of the Seller Company, threatened against or involving the Company or any Subsidiary of the Company. The Company and its Subsidiaries or (iv) lockoutare, strikeand at all times have been, organized slowdownin compliance in all material respects with the requirements of the Immigration Reform Control Act of 1986, work stoppage or work interruption with respect to such employees.
(c) as amended. Neither the Seller Company nor any of its Subsidiaries is bound by or subject to (and none of its assets or properties is bound by or subject to) any written contract, commitment or arrangement with any labor union, and no labor union has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within requested or, to the meaning Knowledge of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementCompany, arbitration or court decision or governmental order in any way limits or restricts has sought to represent any of the SellerEmployees, any of its Subsidiaries Workers, representatives or the Purchaser from relocating or closing any agents of the operations of the Seller Company or any of its Subsidiaries.
(d) The Seller Neither the Company nor any Subsidiary has ever implemented any plant closing or mass layoff of employees as those terms are defined in the Worker Adjustment Retraining and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment Notification Act of wages and benefits. There are no1988, and the Seller has no reason to believe there would be anyas amended, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge Knowledge of the Seller, threatened before the Department of Labor or Company any federal, similar state or administrative agency or court against or involving the Seller or any of its Subsidiarieslocal Law, and no layoffs that could implicate such Laws are currently contemplated.
(e) The Seller and each There are no loans owed by any of its Subsidiaries are in compliance with all immigration laws relating to employment and, the Employees or Workers to the knowledge Company or any Subsidiary of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesCompany.
(f) There are is no investigationsoutstanding undischarged liability to pay to any Governmental Authority any material contribution, administrative proceedings, charges taxation or formal complaints other duty arising in connection with the employment or engagement of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge any of the Seller, threatened before the Equal Employment Opportunity Commission Employees or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesWorkers.
(g) If None of the Seller Employees or Workers or any agency supplying Workers will become entitled by virtue of its Subsidiaries is a federaltheir individual contract of employment or contracting services, state or local contractor obligated to develop and maintain an affirmative action planas the case may be, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office Company to any payment or enhancement in or improvement to their remuneration, benefits or terms and conditions of Federal Contract Compliance Programs service or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints supply solely by reason of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation the execution of this Agreement or retaliation claim is pending against (ii) the Seller completion of the sale and purchase under or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsthis Agreement.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a3.11(a) of the Seller Company Disclosure Letter contains a true and complete list of (a) Schedule lists all employees of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service Subsidiaries and designates each employee by the annual salary, bonus correct employer and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and business division for which the employee primarily performs services.
(b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on disclosed in Section 3.16(a3.11(b) of the Seller Company Disclosure LetterSchedule, neither the Seller Company nor any Subsidiary is a party to any collective bargaining agreement or bound other labor union contract applicable to persons employed by the Company or any material contractsSubsidiary, consulting agreements nor, to the knowledge of the Company, are there any activities or termination proceedings of any labor union to organize any such employees. Except as disclosed in Section 3.11(b) of the Company Disclosure Schedule, as of the date hereof, there are no unfair labor practice complaints pending against the Company or severance agreements any Subsidiary before the National Labor Relations Board or any other Governmental Authority or any current union representation questions involving employees of the Company or any Subsidiary. As of the date hereof, there is no strike, controversy, slowdown, work stoppage or lockout occurring, or, to the knowledge of the Company, any threat thereof in writing, by or with respect to any officer, employee employees of the Company or former employee, consultant or independent contractor. any Subsidiary.
(c) The Seller has provided Company and its Subsidiaries are in compliance in all material respects with all applicable Laws relating to the Purchaser trueemployment of labor, correct including those related to wages, hours, immigration and complete copies naturalization, collective bargaining and the payment and withholding of each such employment agreement, term sheet or taxes and other document. The Seller has not received a claim from any sums as required by the appropriate Governmental Entity Authority and have withheld and paid to the effect that 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 Seller Company or any Subsidiary has improperly classified as an independent contractor and are not liable for any person named on Section 3.16(a) arrears of wages, taxes, penalties or other sums for failure to comply with any of the Seller Disclosure Letterforegoing. Except as set forth The Company and its Subsidiaries have paid in Section 3.16 full to all employees or adequately accrued for in accordance with GAAP consistently applied all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees and there is no claim with respect to payment of wages, salary or overtime pay that has been asserted or is now pending or threatened before any Governmental Authority with respect to any persons currently or formerly employed by the Seller Disclosure Letter, neither Company or any Subsidiary. Neither the Seller Company nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or otherwise bound by, any collective bargaining agreement consent decree with, or other contractscitation by, arrangementsany Governmental Authority relating to employees or employment practices. Except as disclosed in Section 3.11(c) of the Company Disclosure Schedule, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There there is no existing, charge or proceeding with respect to a violation of any occupational safety or health standards that has been asserted or is now pending or, to the knowledge of the SellerCompany, threatened (iwith respect to the Company. Except as disclosed in Section 3.11(c) unfair labor practice of the Company Disclosure Schedule, there is no charge of discrimination in employment or complaintemployment practices, labor disputefor any reason, labor arbitration proceeding including, without limitation, age, gender, race, religion or other legally protected category, which has been asserted or is now pending or threatened before the United States Equal Employment Opportunity Commission, or any other matter before Governmental Authority in any jurisdiction in which the NLRB Company or any other comparable state agency against Subsidiary has employed or involving the Seller or employ any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesperson.
(d) The Seller Company has entered into employment agreements with each of Frank W. Getman Jr. and its Subsidiaries are Anthony M. Callendrello, in compliance subsxxxxxxxxx xxx xxxxx attaxxxx xxxxxx xx Xxxxx X and Annex C (the "Surviving Corporation Employment Agreements"), with all applicable Laws relating such Surviving Corporation Employment Agreements to employment become effective at the Effective Time, provided however, that the effectiveness of such Surviving Corporation Employment Agreements shall be conditioned upon the acceptance of the Shares pursuant to the Offer and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge completion of the Seller, threatened before Merger. Upon the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge effectiveness of the SellerSurviving Corporation Employment Agreements, there are no citations, investigations, administrative proceedings or formal complaints of violations of any other employment agreements between the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 and Messrs. Getman or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesCallendrello shall be deemed terminated.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Baycorp Holdings LTD)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains The Company has made available to SPAC a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies list of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (Company or any Company Subsidiary as defined in Section 5.12(a)) on of the date hereofhereof and sets forth for each such individual the following: (i) name and employing entity; (ii) title or position and location of employment; (iii) current annualized base salary or (if paid on an hourly basis) hourly rate of pay; (iv) whether classified as exempt or non-exempt under the Fair Labor Standards Act and analogous Laws; and (v) commission, bonus or other incentive-based compensation eligibility for the current calendar year.
(b) Neither No employee or other Service Provider of the Seller Company or any Company Subsidiary is, and since January 1, 2018 has not been, represented by a labor union, works council, trade union, or similar representative of employees with respect to their employment with the Company or any Company Subsidiary, and neither the Company nor any of its Subsidiaries Company Subsidiary is a party to, subject to, or bound by, any by a collective bargaining agreement, collective agreement, or any other contract or agreement or other contracts, arrangements, agreements or understandings with a labor union union, works council, trade union, or labor organization that was certified by the National Labor Relations Board ("NLRB")similar representative of employees. There are no, and since January 1, 2018 there have not been any, strikes, lockouts or work stoppages existing or, to the Company’s knowledge, threatened, with respect to any employees or other Service Providers or the Company or any Company Subsidiaries and there have been no union certification or representation petitions or demands with respect to the Company or any Company Subsidiaries or any of their employees or other Service Providers and, to the Company’s knowledge, no union organizing campaign or similar effort is no existingpending or threatened with respect to the Company, any Company Subsidiaries, or any of their employees or other Service Providers.
(c) There are no, and since January 1, 2018 there have not been, material Actions pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding against the Company or any other matter before the NLRB Company Subsidiary by or any other comparable state agency against or involving the Seller or on behalf of any of its Subsidiaries, (ii) activity their respective current or proceeding by a labor union former employees or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employeesother Service Providers.
(cd) Neither Except as set forth in Section 4.11(d) of the Seller nor any Company Disclosure Schedule, the Company and the Company Subsidiaries are and have been since January 1, 2018 in compliance in all material respects with all material applicable Laws relating to labor and employment, including all such material Laws regarding employment practices, employment discrimination, terms and conditions of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of employment, mass layoffs and plant closings (including the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under of 1988 and any similar state or local plant closing notice law. No agreementLaws), arbitration or court decision or governmental order in any way limits or restricts any immigration, meal and rest breaks, pay equity, workers’ compensation, family and medical leave and all other employee leaves, recordkeeping, classification of the Selleremployees and independent contractors, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
wages and hours, pay checks and pay stubs, employee seating, anti-harassment and anti-retaliation (d) The Seller and its Subsidiaries are in compliance with including all applicable such Laws relating to employment the prompt and the payment of wages thorough investigation and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations remediation of any federal or state wage complaints) and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge requirements. Each employee of the Seller, threatened before the Occupational Safety Company and Health Review Commission or each Company Subsidiary and any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance other individual who has provided services with respect to workers' the Company or any Company Subsidiary has been paid (and as of the Acquisition Closing will have been paid) all material wages, bonuses, compensation claims pursuant and other sums owed and due to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsindividual as of such date.
Appears in 1 contract
Samples: Business Combination Agreement (CHW Acquisition Corp)
Labor and Employment Matters. (a) 8.24.1 Section 3.16(a) 8.24.1 of the Seller CMD Disclosure Letter contains Schedule sets forth a true and complete list of all the following: (a) all each "employee benefit plan," as such term is defined in Section 3(3) of the officers of the Seller and the SubsidiariesERISA (each an "Employee Plan"), specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether fulleach other plan, program, policy, contract or arrangement providing for bonuses, pensions, deferred compensation, stock or stock-timerelated awards, part-time severance pay, salary continuation or otherwise) and similar benefits, hospitalization, medical, dental or disability benefits, life insurance or other employee benefits, or compensation to or for any current or former officers, directors, employees, agents, or independent contractors of CMD ("Employees") or any beneficiaries or dependents of any Employee, whether or not insured or funded, pursuant to which CMD has any material liability or constituting an employment or severance agreement or arrangement with any officer or director of CMD. CMD has used its reasonable efforts to provide to OMNI with respect to each Employee Plan and Benefit Arrangement: (a) a true and complete copy of all written documents, including amendments, comprising such Employee Plan or Benefit Arrangement or, if there is no such written document, an accurate and complete description of such Employee Plan or Benefit Arrangement; (b) all Form 5500s or Form 5500-Cs (including all schedules thereto), if applicable; (c) the Seller most recent financial statements and actuarial reports, if any; (d) the summary plan description currently in effect and all material modifications thereof, if any; and (e) the most recent IRS determination letter, if any; and (g) filings with the Department of Labor, including, but not necessarily limited to, "top hat" filings pursuant to Department of Labor Regulation Section 2520.104- 23, if any. Any such Employee Plans and Benefit Arrangements not so provided are not reasonably expected to have, either alone or in the aggregate, any Material Adverse Effect.
8.24.2 To CMD's Knowledge, it has established and maintained in all material respects each Employee Plan and Benefit Arrangement in accordance with its terms and in material compliance with all applicable laws, including, but not limited to, ERISA and the Subsidiaries Code; and any third party trustee has complied in all material respects in the maintenance of each Employee Plan and Benefit Arrangement with all applicable laws and requirements. To CMD's Knowledge, neither CMD nor any of its employees, nor any other disqualified person or party-in-interest with respect to any Employee Plan, has engaged directly or indirectly in any "prohibited transaction," as such term is defined in Section 4975 of the date hereofCode or Section 406 of ERISA, specifying their annual salarywith respect to which CMD could have or has any material liability.
8.24.3 CMD has no Employee Plan that is subject to Title IV of ERISA.
8.24.4 There are no pending or, hourly wagesto CMD's Knowledge, agethreatened proceedings by any Employees or plan participants or the beneficiaries, position, status, length spouses or representatives of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each any of them, respectivelyagainst any Employee Plan or Benefit Arrangement, consulting or other independent contractor feesthe assets held thereunder, together with an appropriate notation next to the name trustee of any officer such assets, or other employee on such list who is subject CMD relating to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering Employee Plans, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending, or to CMD's Knowledge, threatened proceedings by any governmental authority of services by such independent contractor. Except as set forth on Section 3.16(a) or against any Employee Plan or Benefit Arrangement, the trustee of any assets held thereunder, or CMD relating to any of the Seller Disclosure LetterEmployee Plans or Benefit Arrangements.
8.24.5 No Employee Plan has been the subject of an IRS or Department of Labor audit. There are no pending proceedings or, neither to CMD's Knowledge, threatened proceedings in which the Seller nor "qualified" status of any Subsidiary Employee Plan is at issue and in which revocation of the determination letter has been threatened. Each such Employee Plan has not been amended or operated, since the receipt of the most recent determination letter, in a party to or bound by manner that would materially adversely affect the "qualified" status of the Employee Plan. No distributions have been made from any of the Employee Plans that would violate in any material contractsrespect the restrictions under Treas. Reg. Section 1.401(a)(4)-5(b), consulting agreements or termination or severance agreements in respect to any officerand none will have been made by the Closing Date. To CMD's Knowledge, employee or former employee, consultant or independent contractor. The Seller there has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, been no termination, severance or similar matters in connection with the transactions contemplated by this Agreement partial or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a411(d) of the Code and the regulations thereunder, of any Employee Plan.
8.24.6 CMD has made all required contributions under each Employee Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the CMD Financial Statements.
8.24.7 The Merger (either alone or together with any additional or subsequent events) does not constitute an event under any Employee Benefit Plan, Benefit Arrangement or individual employee contract that may result in any payment (whether of severance pay or otherwise), restriction or limitation upon the assets of any Employee Plan or Benefit Agreement, acceleration of payment or vesting, increase in benefits or compensation, or required funding, with respect to any Employee, or the forgiveness of any loan or other commitment of any Employee.
8.24.8 To CMD's Knowledge, no amounts paid or payable by CMD to or with respect to any Employee will fail to be deductible for federal income tax purposes by reason of Section 280G of the Code.
8.24.9 No Employees and no beneficiaries or dependents of Employees are or may become entitled under any Employee Plan or Benefit Arrangement to post-employment welfare benefits of any kind, including without limitation, death or medical benefits, other than coverage mandated by Section 4980B of the Code.
8.24.10 The Employee Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, (such provisions of law and regulations are hereinafter referred to as "COBRA")) on have complied in all material respects at all times during the date hereofpast three (3) years with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. CMD and its agents who administer any of the Employee Plans or Benefit Arrangements, have complied in all material respects at all times during the past three (3) years and will continue to comply in all material respects through the Effective Time, with the notification and written notice requirements of COBRA. There are no pending or, to CMD's Knowledge, threatened proceedings by any current Employee, former Employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Employee Plan or Benefit Arrangement or of any other group health plan ever maintained by CMD to comply with the health care continuation coverage requirements of COBRA.
(b) Neither the Seller nor any of its Subsidiaries is a party to8.24.11 There are no agreements with, or bound bypending petitions for recognition of, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified an association as the exclusive bargaining agent for any of the Employees of CMD; no such petitions have been pending at any time within two years of the date of this Agreement, and, to CMD's Knowledge, there has not been any organizing effort by any union or other group seeking to represent any Employees of CMD as their exclusive bargaining agent at any time within two years of the National Labor Relations Board ("NLRB")date of this Agreement. There is are no existinglabor strikes, work stoppages or other labor troubles, other than routine grievance matters, now pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the SellerCMD's Knowledge, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesCMD.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Creative Medical Development Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a any labor union unions or labor organization that was certified by the National Labor Relations Board ("NLRB")organizations. There is no existing(i) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiariessubsidiaries relating to their businesses, (ii) activity or proceeding by a labor union or representative thereof to the knowledge of the Company to organize any employees of the Seller Company or any of its Subsidiariessubsidiaries, or (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockoutlockouts, strikestrikes, organized slowdownslowdowns, work stoppage stoppages or work interruption threats thereof by or with respect to such employees, and during the last three years there has not been any such action.
(cb) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are nono complaints, and charges or claims against the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings Company or formal complaints of violations of any federal or state wage and hour laws its subsidiaries pending or, to the knowledge of the SellerCompany, threatened before to be brought or filed with any Governmental Entity based on, arising out of, in connection with, or otherwise relating to the Department employment or termination of Labor employment of any individual by the Company or any federalits subsidiaries that, state if individually or administrative agency collectively resolved against the Company or court against or involving the Seller or any of its Subsidiariessubsidiaries, would have a Company Material Adverse Effect.
(ec) The Seller Each of the Company and each of its Subsidiaries are subsidiaries is in compliance with all immigration laws relating to Laws regarding employment andpractices, to terms and conditions of employment and wages, except for such noncompliance that, individually or in the knowledge aggregate, would not have a Company Material Adverse Effect.
(d) During the last five years there has been no “mass layoff” or “plant closing” as defined by the Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”) in respect of the Seller, there are no citations, investigations, administrative proceedings Company or formal complaints of violations of its subsidiaries. Neither the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or Company nor any of its Subsidiaries.
(f) There are no investigationssubsidiaries has been affected by any transactions or engaged in layoffs or employment terminations sufficient in number to trigger application of any state, administrative proceedings, charges local or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap foreign Law or veteran status) pending or, regulation which is similar to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay WARN Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Bioreliance Corp)
Labor and Employment Matters. (a) Section 3.16(aPart 3.13(a) of the Seller Disclosure Letter contains sets forth a true and complete list of (a) all every employment agreement, commission agreement, employee group or executive medical, life, or disability insurance plan, and each incentive, bonus, profit sharing, retirement, deferred compensation, equity, phantom stock, stock option, stock purchase, stock appreciation right or severance plan of the officers Company and its Subsidiaries now in effect or under which the Company or any of its Subsidiaries has or might have any obligation, or any understanding between the Seller Company or any of its Subsidiaries and any employee concerning the Subsidiaries, specifying their position, age, length terms of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next such employee’s employment that does not apply to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure LetterCompany and its Subsidiaries’ employees generally (collectively, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor“Labor Agreements”). The Seller Company has provided previously delivered to the Purchaser true, correct AQU true and complete copies of each such employment agreementLabor Agreement, term sheet any employee handbook or other document. The Seller has not received a claim from policy statement of the Company or any Governmental Entity of its Subsidiaries, and complete and correct information concerning the Company and its Subsidiaries’ employees, including with respect to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a(i) name; (ii) position; and (iii) resident alien status (if applicable). Part 3.13(a) of the Seller Disclosure Letter. Except as set Letter sets forth in Section 3.16 a true and complete list of the Seller Disclosure Letternames, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) addresses and titles of the Seller Disclosure Letterdirectors, all officers and employees managers of each of the Seller Company and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofits Subsidiaries.
(b) Neither Except as disclosed on Part 3.13(b) of the Seller nor Disclosure Letter:
(i) all employees of the Company and its Subsidiaries are employees at will, and the employment of each employee by the Company or any of its Subsidiaries may be terminated immediately by the Company or its Subsidiary, as applicable, without any cost or liability except severance in accordance with the Company and its Subsidiaries’ standard severance practice as disclosed on Part 3.13(b) of the Disclosure Letter or in accordance with applicable Legal Requirements;
(ii) to the knowledge of the Principal Stockholders, the Company and each of its Subsidiaries, no employee of the Company or any of its Subsidiaries has any plan to terminate his or her employment now or in the near future, whether as a result of the transactions contemplated hereby or otherwise;
(iii) to the knowledge of the Principal Stockholders, the Company and each of its Subsidiaries, no employee of the Company or any of its Subsidiaries, in the ordinary course of his or her duties, has breached or will breach any obligation to a former employer in respect of any covenant against competition or soliciting clients or employees or servicing clients or confidentiality or any proprietary right of such former employer; and
(iv) None of the Company or any of its Subsidiaries is a party to, or bound by, to any collective bargaining agreement or other contractsagreement, arrangementshas any material labor relations problems, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There and there is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge representation question or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) union organizing activity or proceeding by a labor union or representative thereof to organize any respecting employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller Company or any of its Subsidiaries.
(dv) The Seller Except as disclosed on Part 3.13(b)(v) of the Disclosure Letter, each of the Company and its Subsidiaries are has complied in compliance all material respects with all Labor Agreements and all applicable Laws relating to employment and the payment of wages and benefitsor labor. There are no, and is no legal prohibition with respect to the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations permanent residence of any federal or state wage and hour laws pending or, to the knowledge employee of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller Company or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to the United States or his or her permanent employment and, to by the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge Except as disclosed on Part 3.13(b) of the SellerDisclosure Letter, threatened against no present or former employee, officer, director or manager of the Seller Company or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAhas, or will have at the Closing Date, any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller Company or any of its Subsidiaries is a federalfor any matter including for wages, state salary, or local contractor obligated to develop and maintain an affirmative action planvacation or sick pay, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge otherwise under any Labor Agreement. All accrued obligations of the SellerCompany and its Subsidiaries applicable to its employees, has been threatened against whether arising by operation of Law, by Contract, by past custom or otherwise, for payments by the Seller Company or any of its Subsidiaries with the Office of Federal Contract Compliance Programs to any trust or other fund or to any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citationsAuthority, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' unemployment or disability compensation claims pursuant to insurance policies that are currently in forcebenefits, social security benefits, house accumulation funds, under ERISA or has accrued an adequate liability for such obligationsotherwise, including, without limitation, have been paid or adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumstherefor have been made.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(aSchedule 4.12(a) of the Seller Company Disclosure Letter contains Schedules sets forth a true true, correct and complete list of (a) all employees of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries any Company Subsidiary as of the date hereof, specifying their including any employee who is on a leave of absence of any nature, authorized or unauthorized, paid or unpaid, and sets forth for each such individual the following: (i) title or position (including whether full or part time); (ii) location and employing entity; (iii) hire date; (iv) exemption treatment by the Company under applicable wage and hour Laws; (v) current annual salarybase compensation rate (or, for hourly wagesemployees, agethe applicable hourly compensation rate); (vi) commission, positiontransaction bonus, statusretention bonus, length of service other bonus or other incentive based compensation opportunity, and the allocation of annual salary, bonus and other actual amounts paid for such compensation in the past two (2) years; (vii) average weekly work hours; (viii) accrued paid time off; and other benefits provided (ix) visa or authorization to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment work and expiration date of such employee or of the rendering of services by such independent contractorauthorization if applicable. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and All employees of the Seller Company have acknowledged their status as employees at will. All compensation, including wages, commissions and bonuses and any termination indemnities, due and payable to all current and former employees of the Subsidiaries are actively at work (as defined in Section 5.12(a)) Company and any Company Subsidiary for services performed on or prior to the date hereofhereof have been paid in full (or accrued in full in the Company’s financial statements).
(bi) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is are no existing, Actions pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding against the Company or any other matter before the NLRB or any other comparable state agency against or involving the Seller or Company Subsidiary by any of its Subsidiariestheir respective current or former employees or other service providers, nor have there been any such Actions in the past three (3) years; (ii) activity neither the Company nor any Company Subsidiary is bound by or proceeding is negotiating any collective bargaining agreement or other contract with a union, works council or labor organization applicable to persons employed by a the Company or any Company Subsidiary, nor, to the knowledge of the Company, are there any activities, efforts, or proceedings of any labor union or representative thereof to organize any employees of such employees, nor have there been any such activities, efforts, or proceedings in the Seller or any of its Subsidiaries, past three (3) years; (iii) certification there are no complaints threatened or decertification question relating to collective bargaining units at pending against the premises of the Seller Company or any of its Subsidiaries Company Subsidiary before the National Labor Relations Board or similar state or foreign labor relations agency, the Equal Employment Opportunity Commission, or any similar Governmental Authority, nor have there been any such complaints in the past three (3) years; and (iv) lockout, there is not now and has not been in the past three (3) years any threat of any strike, organized slowdown, work stoppage stoppage, lockout, concerted refusal to work overtime or work interruption other similar labor disruption or dispute with respect to such employeesthe Company or any Company Subsidiary.
(c) Neither The Company and the Seller nor any Company Subsidiaries are and have been in material compliance with all applicable Laws and contracts relating to employment, employment practices, employment discrimination, harassment and retaliation, terms and conditions of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of employment, termination and discharge, mass layoffs and plant closings (including the Worker Adjustment and Retraining Notification Act of 1988, as amended, and any similar state, local or foreign Law ("WARN") Act collectively, the “WARN Act”)), reasonable accommodation, disability rights or would otherwise trigger notice requirements benefits, immigration, hiring, meal and rest breaks, overtime, payroll documents and wage statements, pay equity, affirmative action obligations, proper classification of employees and other service providers, workers’ compensation, family and medical leave, sick leave, occupational safety and health requirements, wages, hours, collective bargaining and the payment and withholding of taxes and other sums and social contributions as required by the appropriate Governmental Authority. Neither the Company or liability under any state Company Subsidiary are liable for any arrears of wages, taxes, social contributions, penalties or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts other sums for failure to comply with any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any foregoing Laws. The Company and each of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Company Subsidiaries are in compliance with all applicable Laws relating to employment the requirements of the Immigration Reform Control Act of 1986. All current and former employees of the Company and the payment of wages Company Subsidiaries, as applicable, have at all times been properly classified as exempt or non-exempt under the Fair Labor Standards Act and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or applicable state wage and hour laws pending Laws, and all current and former independent contractors and temporary workers of the Company or the Company Subsidiaries, as applicable, have been properly classified and treated as such. There have been no misclassification claims filed or, to the knowledge of the SellerCompany, threatened before against the Department of Labor Company or any federalCompany Subsidiary by any current or former employees, state independent contractors or administrative agency temporary workers or court against or involving by any Governmental Authority.
(d) Except as set forth on Schedule 4.12(e) of the Seller Company Disclosure Schedules, there has been (i) no layoff, plant closing, termination, redundancy or any other forms of its Subsidiariesemployment losses in the six-month period prior to Closing that would trigger the obligations of the Company or any Company Subsidiary under the WARN Act and (ii) no termination of employment (including by resignation or otherwise) of any key employees in the six-month period prior to Closing.
(e) The Seller and each No officer or key employee of its the Company or the Company Subsidiaries are in compliance with all immigration laws relating to employment and, has given written notice to the knowledge Company or the Company Subsidiaries as of the Seller, there are no citations, investigations, administrative proceedings date of this Agreement that such employee intends to terminate his or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesher employment.
(f) There are In the past five (5) years, there have been no investigationsallegations of harassment or misconduct involving any current or former director, administrative proceedingsofficer, charges employee or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge independent contractor of the Seller, threatened before the Equal Employment Opportunity Commission Company or any federalCompany Subsidiary, state and neither the Company nor any Company Subsidiary has entered into any settlement agreements related to allegations of harassment or local agency sexual misconduct by any current or court against former director, officer, employee or involving independent contractor of the Seller Company or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesCompany Subsidiary.
(g) If Schedule 4.12(h) of the Seller Company Disclosure Schedules sets forth, as of the date of this Agreement, a true, correct and complete list of all of the independent contractors, consultants, temporary employees, leased employees and other agents employed or used by the Company or any of its Subsidiaries is Company Subsidiary and classified by the Company or any Company Subsidiary as other than employees, or compensated other than through wages paid by the Company or any subsidiary through such entity’s payroll department (each, a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge “Contingent Worker”) of the SellerCompany and each Company Subsidiary and for each, (a) such individual’s compensation arrangement (including whether paid on an hourly or project basis), (b) such individual’s initial date of engagement, (c) a description of services provided, (d) identification of the staffing company or agency through which they are engaged (if applicable), (e) location where services are provided, (f) average hours worked per week, or alternatively, the total hours worked by such Contingent Worker, and (g) whether engaged as an individual or through an entity. As of the date hereof, all compensation payable to all Contingent Workers of the Company and its Company Subsidiaries for services performed on or before the date of this Agreement has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court paid in full and no desk audit or on-site review is in progress.
(h) There there are no citationsoutstanding agreements, investigationsunderstandings, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge commitments of the Seller, threatened before the Occupational Safety and Health Review Commission or Company regarding any federal, state or local agency or court against or involving the Seller or any of its Subsidiariescompensation.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Business Combination Agreement (Goldenstone Acquisition Ltd.)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) 3.12 of the Seller Company Disclosure LetterSchedule:
(a) No collective bargaining agreement exists that is binding on the Company or any of its subsidiaries and, neither to the Seller nor Company's knowledge, no petition has been filed or proceeding instituted, or any Subsidiary is a party to action taken in contemplation of any such filing or bound institution, by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, an employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies group of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor Company or any of its Subsidiaries is a party tosubsidiaries, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board seeking recognition of a bargaining representative.
("NLRB"). i) There is no existinglabor strike, dispute, slow down or stoppage pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before against the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, subsidiaries; and
(ii) activity or proceeding by a labor union or representative thereof to organize any employees of Neither the Seller or Company nor any of its Subsidiariessubsidiaries has received any demand letters, (iii) certification civil rights charges, suits or decertification question relating drafts of suits with respect to collective bargaining units at the premises of the Seller or claims made by any of its Subsidiaries or (iv) lockoutits subsidiaries' employees, strike, organized slowdown, work stoppage or work interruption with respect to such notice of any governmental or administrative complaints made by any of its or its subsidiaries' employees.
(c) Neither Section 3.12 of the Seller nor any Company Disclosure Schedule contains a list of the name of each officer, employee and consultant of the Company and each of its Subsidiaries has taken subsidiaries, with remuneration greater than Eighty Thousand Dollars ($80,000), together with such person's position or function, annual base salary or wages and any action that would constitute a "Mass Layoff" incentives or "Plant Closing" within the meaning bonus arrangement with respect to such person. As of the Worker Adjustment and Retraining Notification ("WARN") Act date hereof, no such person has terminated or would otherwise trigger notice requirements has notified the Company of an intention to terminate such person's relationship or liability under any state status as an officer, employee or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any consultant of the SellerCompany or such subsidiary for any reason, any of its Subsidiaries or the Purchaser from relocating or closing any including because of the operations consummation of the Seller transactions contemplated by this Agreement. The Company and its subsidiaries have no plans or intentions to terminate any of its Subsidiariessuch officer, employee or consultant.
(d) The Seller Each of the Company and its Subsidiaries are subsidiaries is in compliance with all applicable Applicable Laws relating to respecting employment, employment practices, terms and conditions of employment and the payment of wages and benefits. There hours, in each case, with respect to its employees, except where noncompliance would not have a Material Adverse Effect on the Company.
(e) Each of the Company and its subsidiaries has withheld and reported to the applicable Governmental Entities all amounts required by Applicable Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees.
(f) Except as set forth on Schedule 3.12(f) of the Company Disclosure Schedule, there are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the SellerCompany, threatened before claims or actions against the Department of Labor or any federal, state or administrative agency or court against or involving the Seller Company or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) subsidiaries under any state worker's compensation policy or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiarieslong-term disability policy.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries is a party to, or bound by, to any collective bargaining agreement or other contractslabor contract. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice with respect to any persons employed by or otherwise performing services primarily for the Company or any of its Subsidiaries (the “Company Business Personnel”), arrangements, agreements and there is no unfair labor practice complaint or understandings with a labor union grievance against the Company or labor organization that was certified any of its Subsidiaries or by any Person pursuant to the National Labor Relations Board ("NLRB")Act or any comparable state agency or foreign Law pending or threatened in writing with respect to the Company Business Personnel. There is no existinglabor strike, dispute, slowdown or stoppage pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving affecting the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller Company or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption that may interfere with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning respective business activities of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, The Company and its Subsidiaries have complied in all material respects with all Applicable Laws relating to the knowledge employment of labor.
(b) Except for such incorrect classifications as would not reasonably be expected to result in a liability of more than $100,000 in the aggregate, (i) all individuals who are performing consulting or other services for the Company or any Subsidiary of the SellerCompany are or were correctly classified by the Company as either “independent contractors” or “employees” as the case may be, threatened against and (ii) all employees of the Seller Company and any Subsidiary of the Company have been correctly classified as “exempt” or any of its Subsidiaries “non-exempt” under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(gc) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge Section 3.15(c) of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge Company Letter contains a list of the Sellername of each officer, threatened before employee and independent contractor of the Occupational Safety Company and Health Review Commission each Subsidiary of the Company, together with such person’s position or function, annual base salary or wages and any federal, state incentives or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance bonus arrangement with respect to workers' compensation claims pursuant such person. The Company has made available to insurance policies that are currently in force, or has accrued an adequate liability Parent all form 1099’s filed with the IRS for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsthe past three years.
Appears in 1 contract
Samples: Merger Agreement (Ep Medsystems Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true STFC and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the its Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a neither party to, bound by or bound by, in the process of negotiating any collective bargaining agreement or other contractslabor-related agreement or arrangement with any labor union, arrangementstrade union, agreements labor organization or understandings other employee representative body and no employees of STFC or its Subsidiaries are represented by any labor union, labor organization or works council with respect to their employment with STFC or its Subsidiaries. To the Knowledge of STFC, there have been no labor union organizing activities with respect to any employees of STFC or its Subsidiaries.
(b) In the last three (3) years, none of STFC or any of its Subsidiaries has entered into a settlement agreement with a labor union current or labor organization that was certified former officer, employee or independent contractor of STFC or its Subsidiaries who made allegations of discrimination or sexual harassment by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened either (i) unfair labor practice charge an officer of STFC or complaintits Subsidiaries or (ii) an employee of STFC or its Subsidiaries at the level of Director or above. To the Knowledge of STFC, labor disputein the last three (3) years, labor arbitration proceeding there have been no formal allegations of discrimination or sexual harassment made against (A) any officer of STFC or its Subsidiaries or (B) an employee of STFC or its Subsidiaries at the level of Director or above.
(c) To the Knowledge of STFC, no current employee of STFC or its Subsidiaries, who is at the level of Director or above, intends to terminate his or her employment with STFC or any other matter before of its Subsidiaries prior to the NLRB twelve (12) month anniversary of the Closing.
(d) Except as would not, individually or any other comparable state agency against in the aggregate, have a STFC Material Adverse Effect, each release of employment claims in favor of STFC and its Subsidiaries obtained from an employee of STFC or involving its Subsidiaries since December 31, 2018 is effective and binding to release all employment claims purported to be released therein by such employee, subject to applicable Law.
(e) Except as would not, individually or in the Seller aggregate, reasonably be expected to result in material Liability to SAM or any of its Subsidiaries, to the Knowledge of STFC, (iii) activity or proceeding by a labor union or representative thereof each individual who is currently providing services to organize any employees of the Seller STFC or any of its Subsidiaries, or who provided services to STFC or any of its Subsidiaries since December 31, 2018, as an independent contractor or consultant is or was properly classified and properly treated as an independent contractor or consultant by STFC and its Subsidiaries, (ii) each individual who is currently providing services to STFC or any of its Subsidiaries through a third-party service provider, or who provided services to STFC or any of its Subsidiaries through a third-party service provider since December 31, 2018, is not or was not an employee of STFC or any of its Subsidiaries and (iii) certification none of STFC or decertification question relating any of its Subsidiaries has a single employer, joint employer, alter ego or similar relationship with any other company not affiliated with STFC.
(f) To the Knowledge of STFC, no employee of STFC or its Subsidiaries is in any respect in material violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement or other restrictive covenant: (i) to collective bargaining units at the premises of the Seller STFC or any of its Subsidiaries or (ivii) lockout, strike, organized slowdown, work stoppage to a former employer of any such employee relating (A) to the right of any such employee to be employed by STFC or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(dB) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge or use of the Seller, threatened before the Department of Labor trade secrets or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesproprietary information.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a3.20(a) of the Seller Company Disclosure Letter contains Schedule sets forth (i)(A) a true and complete list of (a) all directors, employees and consultants of the officers of the Seller Company and the Subsidiaries, specifying their its Subsidiaries (including title and position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and (B) the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies base compensation of each such employment agreementdirector, term sheet salaried employee and consultant whose base compensation exceeds $125,000 in the year ending December 31, 2003, and (ii) a list of all former directors, salaried employees and consultants of the Company and each of its Subsidiaries who are currently receiving severance payments. All directors, employees and consultants of the Company and its Subsidiaries as of the date hereof may be terminated by the Company or the relevant Subsidiary at any time with or without cause and without any severance or other document. The Seller has not received a claim from any Governmental Entity Liability to the effect that the Seller Company or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(asuch Subsidiary.
(b) of the Seller Disclosure Letter. Except as set forth in Section 3.16 3.20(b) of the Seller Company Disclosure LetterSchedule, as of the date hereof, (i) no employees of the Company and its Subsidiaries are represented by a labor union or organization, no labor union or organization has been certified or recognized as a representative of any employee of the Company or its Subsidiaries, and neither the Company nor any of its Subsidiaries are a party to or has any obligation under any union Contract, white paper or side agreement with any labor union or organization, or any obligation to recognize or deal with any labor union or organization, and there are no such Contracts, white papers or side agreements pertaining to or which determine the terms or conditions of employment of any employee of the Company or its Subsidiaries; (ii) there are no pending or, to the Knowledge of the Company and its Subsidiaries, threatened representation campaigns, elections or proceedings or questions concerning union representation involving any employees of the Company and its Subsidiaries; (iii) during the three-year period ending on the Closing Date, neither the Seller Company nor any Subsidiary of its Subsidiaries has made engaged in, admitted committing or been held in any verbal commitments administrative or judicial proceeding to have committed any such officersunfair labor practice under the National Labor Relations Act, as amended; (iv) neither the Company nor any of its Subsidiaries is involved in any industrial or trade dispute or any dispute or negotiations regarding a claim of material importance with any labor union or organization; and (v) there are no controversies, claims, demands, grievances or arbitrations of material importance pending or, to the Knowledge of the Company and its Subsidiaries, threatened, between the Company or any of its Subsidiaries, on the one hand, and any of their respective employees or former employeesany actual or claimed representative thereof, consultants or independent contractors on the other hand.
(c) Except as set forth in Section 3.20(c) of the Company Disclosure Schedule, to the Company’s Knowledge, each of the Company and its Subsidiaries has complied with each, and is not in violation in any material respect of any, Law relating to compensationanti-discrimination and equal employment opportunities and there are, and have been, no material violations of any other Law respecting the hiring, hours, wages, occupational safety and health, employment, promotion, retentiontermination or benefits of any employee or other Person. To the Company’s Knowledge, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) each of the Seller Disclosure LetterCompany and its Subsidiaries has filed all material reports, all officers information and employees notices required under any Law respecting the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofany employee or other Person.
(bd) To the Company’s Knowledge, each of the Company and its Subsidiaries has paid or properly accrued in the ordinary course of business all wages and compensation due to employees, including all vacations or vacation pay, holidays or holiday pay, sick days or sick pay, and bonuses.
(e) Neither the Seller Company nor any of its Subsidiaries is a party toto any Contract which restricts the Company or any of its Subsidiaries from relocating, closing or bound byterminating any of its operations or facilities or any portion thereof. Except as otherwise disclosed to Parent in writing, neither the Company nor any collective bargaining agreement or other contractsof its Subsidiaries has since January 1, arrangements, agreements or understandings with 2001 effectuated a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”)) or complaint(ii) a “mass lay-off” (as defined in the WARN Act), labor dispute, labor arbitration proceeding in either case affecting any site of employment or any other matter before facility of the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of except in accordance with the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesWARN Act.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge Each of the Seller, threatened before Company and its Subsidiaries has complied and is in material compliance with the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge requirements of the Seller, threatened against the Seller or any Immigration Reform and Control Act of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries1986.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a5.13(a)(1) of the Seller Disclosure Letter contains a true and complete list of (a) Schedule lists all employees of the officers of the Seller and the SubsidiariesCompany or its Subsidiaries by name, specifying their position, ageemploying entity, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, time or part-time status, date of hire, location of employment, seniority or otherwiseservice credit date if different from initial date of hire, exempt or non-exempt status, employment status (whether active or on leave of absence), compensation, bonuses or commissions for 2017, and accrued but unused vacation, sick or other paid leave as of October 31, 2018. Section 5.13(a)(2) and of the Disclosure Schedule lists (i) independent contractors of the Seller Company or its Subsidiaries that were paid in excess of $50,000 in 2017, any contract expiration date, and the length of any notice period to terminate such contractual relationship, (ii) independent contractors of the Company or its Subsidiaries that were paid in excess of $10,000 in 2017, and (iii) independent contractors of the Company or its Subsidiaries that were paid in excess of $10,000 for the ten (10) month period ended October 31, 2018. Except as set out on Section 5.13(a)(1) of the Disclosure Schedule, as of October 31, 2018 no employee is on long-term disability leave or otherwise an inactive employee, all employees are employees at-will, and no former employee of the Company or any of its Subsidiaries has any right to recall or reemployment. To the Company’s - 25 - Knowledge, as of the date hereof, specifying their annual salaryno executive or key employee or group of employees has provided written notice (or, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name Company’s Knowledge, oral notice) of any officer an intent to terminate employment with the Company or other employee on such list who is subject one of its Subsidiaries or not to any written employment agreement or any other written term sheet or other document describing become employed by the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Buyer.
(b) Except as set forth on Section 3.16(a5.13(b) of the Seller Disclosure LetterSchedule, neither the Seller Company nor any Subsidiary of its Subsidiaries is a party to or bound by any material contractscollective bargaining agreement. To the Company’s Knowledge, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies as of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor , there is currently no organized effort by any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller Company or any of its Subsidiaries, Subsidiaries into one (iii1) certification or decertification question relating to more collective bargaining units at units, nor have there been any such labor union organization efforts during the premises of previous five (5) years. Neither the Seller or Company nor any of its Subsidiaries or (iv) lockout, has experienced any labor strike, organized work stoppage, slowdown, work stoppage or work interruption with respect to such employeesother material labor dispute during the past five (5) years.
(c) The Company and each of its Subsidiaries is in material compliance with all Laws governing and related to the employer-employee relationship, including all Laws related to anti-discrimination, anti-harassment, anti-retaliation, wages and hours, overtime compensation, break periods, seating, collective bargaining, pay equity, use of credit reports, payday laws, whistleblower protections, employee classifications, employee leave, disability accommodations, workers’ compensation, child labor, immigration and E-Verify, employee health and safety, and required employment taxes and withholdings (“Employment Laws”). There is no pending Proceeding (or, to the Company’s Knowledge, governmental investigation) relating to any alleged violation of breach by the Company or its Subsidiaries of any Employment Laws. Neither the Seller Company nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of trigger any obligations to issues notices under the Worker Adjustment and Retraining Notification Act during the past three ("WARN"3) Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice lawyears. No agreement, arbitration or court decision or governmental order in any way limits or restricts any None of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller Company or any of its Subsidiaries is subject to any order, settlement or consent decree with any present or former employee, employee representative or other Person, including any Governmental Authority, relating to claims of discrimination or other claims in respect of employment or labor practices and policies. No Governmental Authority has issued a federaljudgment, state order, decree or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, finding with respect to the knowledge labor and employment practices (including practices relating to discrimination, wage payments, employee classification and immigration) of the Seller, has been threatened against the Seller Company or any of its Subsidiaries with the Office of Federal Contract Compliance Programs which remains outstanding or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressunsatisfied.
(hd) There are no citationsWith respect to any Contract with a Governmental Authority, investigationsthe Company and each of its Subsidiaries is and has been in material compliance with Executive Order No. 11246 of 1965 (“E.O. 11246”), administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge Section 503 of the SellerRehabilitation Act of 1973 (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), threatened before including all implementing regulations. To the Occupational Safety and Health Review Commission or any federalCompany’s Knowledge, state or local agency or court against or involving neither the Seller or Company nor any of its SubsidiariesSubsidiaries is, and has been during the past three (3) years, the subject of any audit, investigation or enforcement action by any Governmental Authority in connection with any Contract with a Governmental Authority or related compliance with E.O. 11246, Section 503 or VEVRAA. The Company has not been debarred, suspended or otherwise made ineligible from doing business with the United States government or any government contractor.
(ie) No workers' Except to the extent included as a current liability in the calculation of Working Capital, all wages, bonuses and other compensation, if any, due and payable as of the Closing Date to all employees of the Company and its Subsidiaries have been paid in full to such employees prior to Closing.
(f) Except as set forth on Section 5.13(f) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has paid nor will it be required to pay any bonus, fee, remuneration, or other compensation to any employee (other than salaries, wages or retaliation claim is pending against bonuses paid or payable in the Seller ordinary course of business in accordance with current compensation levels as set forth on Section 5.13(a)(1) of the Disclosure Schedule with adjustments permitted by Section 6.04) as a result of the transactions contemplated by this Agreement or any contractual right triggered by any of the transactions contemplated by this Agreement.
(g) Each independent contractor of the Company or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.been properly characterized as such
Appears in 1 contract
Samples: Purchase Agreement (Arcosa, Inc.)
Labor and Employment Matters. (a) Schedule 3.20 contains a complete list of all written employment arrangements, pension, retirement, profit sharing and bonus plans, and deferred compensation, health, welfare, severance management, and other similar plans for the benefit of any employees of the Company, including employee plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Except for the Company’s 401(k) plan, the Company at present is not, and during the five (5) year period preceding the Closing Date will not have been, a sponsor of, party to or obligated to contribute to any employee benefit plan (as defined in § 3(3) of ERISA). The Company at present is not, and during the five (5) year period preceding the Closing Date will not have been, a party to any collective bargaining agreement. The Company has never been a member of a “controlled group of corporations” within the meaning of Section 3.16(a414(b) or (c) of the Seller Disclosure Letter contains Code and has never maintained a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided defined benefit pension plan or contributed to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries a multiemployer plan as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on defined in Section 3.16(a3(37) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractorERISA. The Seller has provided to the Purchaser trueTrue, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity Employee Benefit Plan have heretofore been delivered by the Company to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofPurchaser.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board With respect to each Employee Benefit Plan:
("NLRB"). There 1) there is no existinglitigation, disputed claim (other than routine claims for benefits), governmental proceeding, inquiry or investigation pending or, to the knowledge Knowledge of the SellerShareholders, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to each such employeesplan, its related trust, or any fiduciary, administrator or sponsor of such plan; and
(2) each such plan has been established, maintained, funded and administered in all material respects in accordance with its governing documents, and any applicable provisions of ERISA, the Code and other Applicable Laws.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning All directors, officers, and employees of the Worker Adjustment Company, together with the current salaries, job descriptions, and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementlocations of such directors, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiariesofficers and employees are set forth on Schedule 3.20.
(d) The Seller Except as set forth on Schedule 3.20 and its Subsidiaries are in compliance with all applicable Laws relating as required under COBRA, the Company is not obligated to employment and the payment of wages and benefits. There are no, and the Seller has no reason does not (directly or indirectly) provide death benefits or health care coverage to believe there would be any, citations, investigations, administrative proceedings any former employees or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesretirees.
(e) The Seller and each of its Subsidiaries are in compliance Company has complied with all immigration laws relating to Applicable Laws respecting employment andpractices, to terms and conditions of employment, wages and hours, equal employment opportunity, and the knowledge payment of social security and similar taxes. To the Knowledge of the SellerShareholders, there are no citations, investigations, administrative proceedings or formal complaints of violations the Company is not engaged in any unfair labor practice. The Company has complied with all applicable provisions of the immigration laws pending or threatened before the Immigration Reform and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any Control Act of its Subsidiaries1986.
(f) There are no investigationsExcept as set forth on Schedule 3.20, administrative proceedings, charges the Company has not entered into any severance or formal complaints similar arrangement in respect of discrimination any present or former employee that will result in an obligation (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap absolute or veteran statuscontingent) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission Company to make any payment to any present or any federal, state former employee following termination of employment or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge upon consummation of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariestransactions contemplated by this Agreement.
(g) If As of the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action planClosing Date, no discrimination claimexecutive officer, show-cause notice, conciliation proceeding, sanctions Key Employee or debarment proceedings is pending or, group of employees shall have ceased to be employed by the knowledge of the Seller, has been threatened against the Seller Company or any of its Subsidiaries expressed an intention to terminate his or her employment with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressCompany.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(aSchedule 3.11(a) of the Seller Company Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries Schedules sets forth as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length hereof a list of service the names of the officers and employees of the allocation of annual salary, bonus Company and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor feesits Subsidiaries, together with an appropriate notation next to the name their title or job classification, work location, current annual salary and target annual cash bonus (exclusive of any officer discretionary bonuses or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractorcommissions) for 2006, if any. Except as set forth on Section 3.16(aSchedule 3.11(a) of the Seller Company Disclosure LetterSchedules, neither none of such persons has an employment Contract with the Seller nor Company or any Subsidiary of its Subsidiaries, which is a party to not terminable on notice by the Company or bound by any material contracts, consulting agreements of its Subsidiaries of sixty (60) days or termination less without cost or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided other liability to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller Company or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(aof its Subsidiaries (other than accrued compensation and vacation pay, and severance benefits of not more than the greater of (x) statutorily required amounts, (y) four (4) weeks’ base pay and (z) one week’s base pay for each completed year of the Seller Disclosure Letterservice). Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(aSchedule 3.11(a) of the Seller Company Disclosure LetterSchedules, all each of the officers and employees of the Seller Company has entered into an agreement with the Company substantially in the form attached as Schedule 3.11(a) of the Company Disclosure Schedules, and the Company has not released any such officer or employee from his or her obligations thereunder and such agreements are in full force and effect. No officer or Key Employee of the Company has advised the Company (orally or in writing) that he or she intends to terminate employment with the Company or any of its Subsidiaries. The Company and each of its Subsidiaries are actively at work (as defined has complied in Section 5.12(a)) on all material respects with all applicable Laws relating to the date hereofemployment of labor, including provisions relating to wages, hours, equal opportunity, collective bargaining and the payment of Social Security and other Taxes.
(b) Schedule 3.11(b) of the Company Disclosure Schedules sets forth a list as of the date of this Agreement, separately by company and location, of the names of all individuals who perform services at an annualized rate in excess of $100,000 per year for the Company and its Subsidiaries as a consultant or an independent contractor, the services they perform, their rate of compensation and any bonus entitlement.
(c) Neither the Seller Company nor any of its Subsidiaries is a party to, to any labor or bound by, any collective bargaining agreement contract. To the Knowledge of the Company, there are no organizing activities or other contracts, arrangements, agreements collective bargaining arrangements that could affect the Company or understandings any of its Subsidiaries pending or under discussion with a labor union or any labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge or group of employees of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller Company or any of its Subsidiaries, (ii) activity there are no lockouts, strikes, slowdowns or proceeding work stoppages pending or, to the Knowledge of the Company, threatened by a labor union or representative thereof with respect to organize any employees of the Seller Company or any of its Subsidiaries, and (iii) certification or decertification question relating to collective bargaining units at neither the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller Company nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within is involved in nor, to the meaning Knowledge of the Worker Adjustment and Retraining Notification ("WARN") Act Company, threatened with, any labor dispute, arbitration, lawsuit or would otherwise trigger notice requirements administrative proceeding relating to labor matters involving current or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any former employees of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller Company or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge Except as set forth on Schedule 3.11(d) of the SellerCompany Disclosure Schedules, threatened before (i) each individual who is treated by the Department of Labor or any federal, state or administrative agency or court against or involving the Seller Company or any of its SubsidiariesSubsidiaries as an independent contractor or as the employee of a third party is properly so treated under applicable Law and (ii) no Employee Plans cover or provide benefits (other than Options) to any individuals other than directors (under equity-based plans) or employees of the Company or its Subsidiaries and their qualified beneficiaries.
(e) The Seller and With respect to employees of the Company or its Israeli Subsidiary (the “Israeli Sub”), who reside or work in Israel (the “Israeli Employees”), except as set forth in Schedule 3.11(e) of the Disclosure Schedules: (i) the employment of each Israeli Employee is subject to termination upon not more than sixty (60) days’ prior written notice, (ii) all obligations of its Subsidiaries are in compliance with the Israeli Sub to provide statutory severance pay to all immigration laws relating to employment and, Israeli Employees pursuant to the knowledge Severance Pay Law (5723-1963) are fully funded or accrued on the Financial Statements and Balance Sheet, (iii) the Israeli Sub does not employ any foreign workers the employment of the Seller, whom would require any Permit or other authorization of a Governmental Authority; (iv) there are no citationsunwritten policies, investigations, administrative proceedings practices or formal complaints of violations customs of the immigration laws pending Israeli Sub that, by extension, could reasonably be expected to entitle any Israeli Employee to benefits in addition to those to which such Israeli Employee is entitled by applicable legal requirements or threatened before under the Immigration terms of such Israeli Employee’s employment agreement, (v) all amounts that the Israeli Sub is legally or contractually required either (x) to deduct from Israeli Employees’ salaries or to transfer to such Israeli Employees’ pension or provident, life insurance, incapacity insurance, continuing education fund or other similar funds or (y) to withhold from the Israeli Employees’ salaries and Naturalization Service benefits and to pay to any Governmental Entity as required by the Israeli Income Tax Ordinance and/or National Insurance Law or otherwise, have, in each case, been duly deducted, transferred, withheld and paid, and Israeli Sub does not have any federaloutstanding obligation to make any such deduction, state transfer, withholding or administrative agency payment, and (vi) Israeli Sub is in compliance in all material respects with all applicable Laws and Contracts relating to employment, employment practices, wages, bonuses and other compensation matters and terms and conditions of employment related to Israeli Employees, including The Prior Notice to the Employee Law, 2002, The Notice to Employee (Terms of Employment) Law, 2002, the Prevention of Sexual Harassment Law, 1998, and The Employment by Human Resource Contractors Law, 1996. Except as set forth in Schedule 3.11(e) of the Disclosure Schedule, the Israeli Sub does not and is not required on the basis of collective agreements or court against extension orders, to confer upon any Israeli Employees any rights or involving privileges beyond those set out in such Israeli Employee’s employment agreement. For purposes of this Agreement, the Seller term “Israeli Employee” shall be construed to include consultants and freelancers who devote a majority of their working time in Israel to the business of the Company or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending the Israeli Sub or, due to the knowledge circumstances of their engagement, could otherwise be reasonably deemed to be subject to Israeli labor laws. The Company has provided to Acquiror a correct and complete summary of the Sellercalculations concerning the components of the Israeli Employees’ salaries, threatened before including any components that are not included in the Equal Employment Opportunity Commission basis for calculation of amounts set aside for purposes of statutory severance pay. The Company has provided to Acquiror (a) any and all agreements with human resource contractors, or any federalwith consultants, state sub-contractors or local agency or court against or involving the Seller or any of its Subsidiaries. No discriminationfreelancers; and (b) full documents, sexual harassmentmanuals, retaliation and/or wrongful or tortious conduct claim is pending or, and written policies relating to the knowledge employment and termination of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesIsraeli Employees.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (PMC Sierra Inc)
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller Company nor any of its Subsidiaries is a party to, or bound by, to any collective bargaining agreement or other contractslabor contract. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice with respect to any persons employed by or otherwise performing services primarily for the Company or any of its Subsidiaries (the "Company Business Personnel"), arrangements, agreements and there is no unfair labor practice complaint or understandings with a labor union grievance against the Company or labor organization that was certified any of its Subsidiaries or by any Person pursuant to the National Labor Relations Board ("NLRB")Act or any comparable state agency or foreign law pending or threatened in writing with respect to the Company Business Personnel. There is no existinglabor strike, dispute, slowdown or stoppage pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving affecting the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller Company or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption that may interfere with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning respective business activities of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller Company or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, The Company and its Subsidiaries have complied in all material respects with all Applicable Laws relating to the knowledge employment of labor.
(b) Except for such incorrect classifications as would not be expected to result in a liability of more than $300,000 in the aggregate, (i) all individuals who are performing consulting or other services for the Company or any Subsidiary of the Seller, threatened against Company are or were correctly classified by the Seller Company as either "independent contractors" or "employees" as the case may be and (ii) all employees of the Company and any Subsidiary of its Subsidiaries the Company have been correctly classified as "exempt" or "non-exempt" under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(gc) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge Section 3.15(c) of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge Company Letter contains a list of the Sellername of each officer, threatened before employee and independent contractor of the Occupational Safety Company and Health Review Commission each Subsidiary of the Company, together with such person's position or function, annual base salary or wages and any federal, state incentives or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance bonus arrangement with respect to workers' compensation claims pursuant such person. The Company has made available to insurance policies that are currently in force, or has accrued an adequate liability Buyer all form 1099s filed with the IRS for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsthe past three years.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(athe USAUTO LABOR MATTERS SCHEDULE, with respect to the business of USAuto and its Subsidiaries: (i) to USAuto's Knowledge, no employee of the Seller Disclosure Letter, neither the Seller nor USAuto or any Subsidiary of its Subsidiaries (A) has any present intention to terminate such employee's employment with USAuto or its Subsidiaries or (B) is a party to any confidentiality, non-competition, proprietary rights or bound other similar agreement between such employee and any entity other than USAuto or any of its Subsidiaries; (ii) no labor organization or group of employees has filed any representation petition or made any demand for recognition; (iii) no union organizing or decertification efforts are underway or, to USAuto's Knowledge, threatened and no other question concerning representation exists; (iv) no labor strike, work stoppage, slowdown or other material labor dispute has occurred, and none is underway or, to USAuto's Knowledge, threatened; (v) there is no workman's compensation liability, experience or matter that would reasonably be expected to have a Material Adverse Effect on USAuto; and (vi) there is no employment-related charge, complaint, grievance or, to USAuto's Knowledge, investigation or inquiry of any kind, pending or, to USAuto's Knowledge, threatened in any forum, relating to an alleged violation or breach by USAuto or any of its Subsidiaries (or any of its or their officers or directors) of any material contractslaw, consulting agreements regulation or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(acontract.
(b) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters All notices required in connection with the transactions contemplated by this Agreement under any collective bargaining agreement to which USAuto or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party tohave been given, and all collective bargaining obligations of USAuto and its Subsidiaries with any employee representative have been, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, prior to the knowledge of Closing will be, satisfied. Within the Sellerpast three years, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller neither USAuto nor any of its Subsidiaries has taken implemented any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning mass layoff of employees for which proper notification was not provided under the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementof 1988, arbitration or court decision or governmental order in any way limits or restricts any of the Selleras amended, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federalsimilar foreign, state or local agency law, regulation or court against or involving ordinance (collectively, the Seller or any of its Subsidiaries. No discrimination"WARN ACT"), sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller and no such action will be implemented by USAuto or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, prior to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesClosing.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a) of the Seller Disclosure Letter contains a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a4.21(a) of the Seller Company Disclosure LetterSchedule, all officers the Company and employees of the Seller and the its Subsidiaries are actively at work (and have been in compliance in all material respects with all Applicable Laws relating to employment and employment practices, terms and conditions of employment and wages and hours, and such laws respecting employment discrimination, equal opportunity, affirmative action, worker's compensation, occupational safety and health requirements and unemployment insurance and related matters, and is not engaged in and has not engaged in any unfair labor practice as defined in Section 5.12(a)) on the date hereofunder Applicable Laws.
(b) Neither the Seller nor The Company and its Subsidiaries are not delinquent or in arrears in payments to any of its Subsidiaries is a party totheir respective employees or agents for any wages, salaries, commission, overtime payments, bonuses or other direct compensation for any services performed by them or benefits required to be provided or amounts required to be reimbursed to such officers, directors, employees or agents.
(c) Except as set forth in Schedule 4.21(c), if the employment of any such officers, directors, employees or agents terminates for any reason, neither Company, Parent, Acquisition Sub nor the Surviving Corporation will, pursuant to any agreement in effect, or bound byby reason of any act or omission by Company or any subsidiary before the Effective Time, be liable to any collective bargaining agreement of such officers, directors, employees or agents for so-called "severance pay" or any other contractspayments, arrangementsbenefits or damages.
(d) Except as set forth in Section 4.21(d) of the Company Disclosure Schedule, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There there is no existing, material controversy pending or, to the knowledge of the SellerDachis, threatened (i) unfair labor practice charge or complaintbetween Company and its Subsidiaries, labor dispute, labor arbitration proceeding or any other matter before on the NLRB or any other comparable state agency against or involving the Seller or one hand and any of its Subsidiariesemployees or consultants or former employees or consultants, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of on the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesother hand.
(e) The Seller Company and each of its Subsidiaries (i) have never been and are in compliance not now subject to a union organizing effort, (ii) are not subject to any collective bargaining agreement with all immigration laws relating respect to employment andany of their respective employees, and (iii) are not subject to the any other contract, written or oral, with any trade or labor union, employees' association or similar organization. Company and its Subsidiaries have good labor relations, and have no knowledge of any facts indicating that the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations consummation of the immigration laws pending or threatened before the Immigration transactions contemplated hereby will have a Company Adverse Effect on such labor relations, and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or has no knowledge that any of its Subsidiariestheir key employees intends to leave their employ.
(f) There Except as set forth in Schedule 4.21(f), Company and its Subsidiaries have no employment contracts or consulting agreements currently in effect that are no investigations, administrative proceedings, charges not terminable at will (other than agreements with the sole purpose of providing for the confidentiality of proprietary information or formal complaints assignment of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to inventions). To the knowledge of the SellerDachis, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any no employee of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of Company and its Subsidiaries under the 1866is in violation of any term of any employment contract, 1877patent disclosure statement, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISAnoncompetition agreement, or any other federal law contract or agreement, or any restrictive covenant, relating to employment the right of any such employee to be employed thereby, or any comparable state or local fair employment practices act regulating discrimination in the workplaceto use proprietary information of others, and no wrongful discharge, libel, slander, invasion the employment of privacy or such employees does not subject Company and its Subsidiaries to any claim by any other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its SubsidiariesPerson.
(g) If the Seller or any A list of all employees, officers and consultants of Company and its Subsidiaries and their current compensation is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge set forth on Section 4.21(g) of the Seller, has been threatened against the Seller or Company Disclosure Schedule. Such list also describes any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligationsvested benefits, including, without limitation, adequate accruals with respect vacation or sick pay, which each Person on such list is entitled to accrued but unreported claims and retroactive insurance premiumsreceive from Company.
Appears in 1 contract
Samples: Selling Shareholder's Agreement (Game Financial Corp)
Labor and Employment Matters. (a) Section 3.16(a4.11(a) of the Seller Company Disclosure Letter contains Schedule sets forth a true true, correct and complete list of (a) all employees of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries any Company Subsidiary as of the date hereof, specifying their annual salaryincluding any employee who is on a leave of absence of any nature, authorized or unauthorized, and sets forth for each such individual the following, on a no name basis: (i) title or position (including whether full or part time); (ii) hire date and service commencement date (if different); (iii) current annualized base salary or (if paid on an hourly basis) hourly rate of pay; and (iv) commission, bonus or other incentive based compensation. As of the date hereof, all compensation, including wages, agecommissions and bonuses, position, status, length of service due and the allocation of annual salary, bonus and other amounts paid and other benefits provided payable to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller Company and the Subsidiaries are actively at work (as defined in Section 5.12(a)) any Company Subsidiary for services performed on or prior to the date hereofhereof have been paid in full (or accrued in full in the Financial Statements).
(b) Neither No employee of the Seller Company or any Company Subsidiary is represented by a labor union, works council, trade union, or similar representative of employees, and neither the Company nor any of its Subsidiaries Company Subsidiary is a party to, subject to, or bound by, any by a collective bargaining agreement or any other contracts, arrangements, agreements contract or understandings agreement with a labor union union, works council, trade union, or labor organization that was certified by the National Labor Relations Board ("NLRB")similar representative of employees. There are no, and there have never been any, strikes, lockouts or work stoppages existing or, to the Company’s knowledge, threatened, with respect to any employees of the Company or any Company Subsidiaries. There are no, and there have never been, any union certification or representation petitions or demands with respect to the Company or any Company Subsidiaries or any of their employees and, to the Company’s knowledge, no union organizing campaign or similar effort is pending or threatened with respect to the Company, any Company Subsidiaries, or any of their employees.
(c) There are no existing, Actions pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding against the Company or any Company Subsidiary by or on behalf of any of their respective current or former applicants, employees, contractors, directors, officers or other matter before representatives. No allegations of discrimination, harassment, or retaliation have been made against any executive, officer, or director of the NLRB Company or any Company Subsidiary and the Company has not entered into any settlement agreement or conducted any investigation related to allegations of sexual harassment or sexual misconduct made by or against an employee, contractor, director, officer or other comparable state agency against representative of the Company or involving any Company Subsidiary.
(d) Except in each case as would not reasonably be expected to result in material liability to the Seller Company or any of its the Company Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question Company and the Company Subsidiaries are and have been at all times in compliance in all respects with all applicable Laws relating to collective bargaining units at the premises labor and employment, including all such Laws regarding employment practices, employment discrimination, terms and conditions of the Seller or any of its Subsidiaries or employment, mass layoffs and plant closings (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of including the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under of 1988 and any similar state or local plant closing notice law. No agreementLaws), arbitration or court decision or governmental order in any way limits or restricts any immigration, meal and rest breaks, pay equity, workers’ compensation, family and medical leave and all other employee leaves, recordkeeping, classification of the Selleremployees and independent contractors, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
wages and hours, pay checks and pay stubs, employee seating, anti-harassment and anti-retaliation (d) The Seller and its Subsidiaries are in compliance with including all applicable such Laws relating to employment the prompt and the payment of wages thorough investigation and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations remediation of any federal or state wage complaints) and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, requirements. Except as would not reasonably be expected to result in material liability to the knowledge Company or any Company Subsidiary, neither the Company nor any Company Subsidiary is liable for any arrears of wages, penalties or other sums for failure to comply with any of the Seller, threatened foregoing. All employees of the Company and the Company Subsidiaries are employed on an “at-will” basis and their employment can be terminated at any time for any reason without notice or payment of severance or other compensation or consideration being owed to such individual other than amounts owed as of the date of termination from employment based on service before that date or as required under applicable Law. The Company’s relationships with all individuals who act as contractors or other service providers to the Company or its Subsidiaries can be terminated at any time for any reason without notice or any amounts being owed to such individual other than with respect to compensation or payments accrued before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving termination. Except in each case as would not reasonably be expected to result in material liability to the Seller Company or any of its the Company Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against , each employee of the Seller or Company and each Company Subsidiary and any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance other individual who has provided services with respect to workers' the Company or any Company Subsidiary has been paid (and as of the Closing will have been paid) all wages, bonuses, compensation claims pursuant and other sums owed and due to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsindividual as of such date.
Appears in 1 contract
Samples: Business Combination Agreement (DHC Acquisition Corp.)
Labor and Employment Matters. (a) Section 3.16(a) of Except as would not, individually or in the Seller Disclosure Letter contains aggregate, reasonably be expected to have a true Company Material Adverse Effect, the Company and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectivelyCompany Subsidiary is, and annual rate of compensation for the past two years has been, in compliance with all applicable labor and (b) employment Laws, including all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters Laws enacted in connection with the transactions contemplated novel coronavirus (COVID-19) pandemic or otherwise relating to: (i) wages, hours and any similar mass layoff Law, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation; (ii) the collection and payment of withholding and/or social security Taxes and any similar Tax; and (iii) deductions, payments and contributions of retirement insurance, medical insurance, unemployment insurance, work-related injury insurance, birth and nursery insurance, pension fund insurance and any other social benefit payments required by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereofapplicable Law.
(b) Neither Except as would not, individually or in the Seller nor any of its Subsidiaries is aggregate, reasonably be expected to have a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board Company Material Adverse Effect: ("NLRB"). There is i) there are no existing, controversies pending or, to the knowledge of the SellerCompany, threatened between the Company or any Company Subsidiary and any of their respective current or former employees, contractors, subcontractors, agents or other persons engaged by the Company or any Company Subsidiary in connection with their businesses (icollectively, “Company Personnel”), including controversies with respect to the items listed in Section 4.10(a) whether directly between the Company or any Company Subsidiary and any Company Personnel or before or involving any Governmental Authority; (ii) there are no collective bargaining agreement or other labor union contract applicable to persons employed by the Company or any Company Subsidiary and to which the Company or any Company Subsidiary is a party to or bound by; (iii) there are no labor unions or other organizations representing or purporting to represent any Company Personnel, nor are there any organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit which could affect the Company or any Company Subsidiary; (iv) there are no unfair labor practice charge complaints pending, or complaintto the knowledge of the Company, labor disputethreatened, labor arbitration proceeding against the Company or any other matter Company Subsidiary before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, Governmental Authority; and (iiv) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, there is no strike, organized slowdown, work stoppage or work interruption lockout, or similar activity or, threat thereof, by or with respect to any Company Personnel, nor has there been any such employeesoccurrence during the past two years.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning The consummation of the Worker Adjustment and Retraining Notification Transactions will not ("WARN"either alone or together with any other event) Act entitle any individual Company Personnel to severance pay or would otherwise accelerate the time of payment or vesting or trigger notice requirements any payment of funding (through a trust or liability under otherwise) of compensation or benefits under, increase the amount payable or trigger any state or local plant closing notice lawother material obligation. No agreement, arbitration amount payable or court decision or governmental order economic benefit to be provided to any individual Company Personnel in any way limits or restricts any connection with the consummation of the Seller, any of its Subsidiaries Transactions is expected to or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating could give rise to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there any amount that would not be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, deductible pursuant to the knowledge terms of Section 280G of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesCode.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Samples: Merger Agreement (Stonemor Inc.)
Labor and Employment Matters. (a) Attached hereto as Section 3.16(a3.11(a) of the Seller Company Disclosure Letter contains Schedule is a true and complete list of (a) the name and current salary rate of all of the present officers of the Seller Company and each Company Subsidiary and the Subsidiariesfive most highly compensated (based on aggregate compensation for the year ended December 31, specifying their position2016) non-officer employees of the Company and each Company Subsidiary (the “Material Employees”), age, length of service and the annual together with each such Material Employee’s base salary, bonus and allocation of amounts paid bonus, additional compensation and other benefits provided benefits, if any, paid or payable to each of them, respectively, and annual rate of compensation and such Material Employee.
(b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a3.11(b) of the Seller Company Disclosure LetterSchedule, all officers and employees of the Seller and the Subsidiaries (i) there are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, controversies pending or, to the knowledge of the SellerCompany, threatened between the Company or any Company Subsidiary and any of their respective employees, which controversies would reasonably be expected to result in material liability to the Company; (iii) neither the Company nor any Company Subsidiary is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by the Company or any Company Subsidiary, there has been no attempt by any labor union to organize any such employees within the past 6 years, nor, to the knowledge of the Company, are there any activities or proceedings of any labor union to organize any such employees; (iii) neither the Company nor any Company Subsidiary has breached or otherwise failed to comply in any material respect with any provision of any such agreement or contract, and there are no grievances outstanding against the Company or any Company Subsidiary under any such agreement or contract; (iv) there are no unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding complaints pending against the Company or any other matter Company Subsidiary before the NLRB National Labor Relations Board or any other comparable state agency against or current union representation questions involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller Company or any of its Subsidiaries, Company Subsidiary; and (iiiv) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, there is no strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreementlockout, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the SellerCompany, threatened before threat thereof, by or with respect to any employees of the Department of Labor Company or any federal, state or administrative agency or court against or involving the Seller or any of its SubsidiariesCompany Subsidiary.
(ec) The Seller Company and each of its the Company Subsidiaries are in compliance in all material respects with all immigration applicable laws relating to the employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligationslabor, including, without limitation, adequate accruals those related to wages, hours, collective bargaining, the classification of individuals as independent contractors or employees and the payment and withholding of taxes and other sums as required by the appropriate Governmental Authority and 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 Company Subsidiary and are not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing. The Company and the Company Subsidiaries have paid in full to all employees or adequately accrued for in accordance with GAAP consistently applied all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees and there is no claim with respect to accrued but unreported claims and retroactive insurance premiumspayment of wages, salary or overtime pay that has been asserted or is now pending or threatened in writing before any Governmental Authority with respect to any persons currently or formerly employed by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. To the knowledge of the Company, there is no charge or proceeding with respect to a violation of any occupational safety or health standards that has been asserted or is now pending or threatened with respect to the Company. To the knowledge of the Company, there is no charge of discrimination in employment or employment practices, for any reason, including, without limitation, age, gender, race, religion or other legally protected category, which has been asserted or is now pending or threatened in writing before the United States Equal Employment Opportunity Commission, or any other Governmental Authority in any jurisdiction in which the Company or any Company Subsidiary has employed or employ any person, in each case with respect to the Company or any Company Subsidiary.
Appears in 1 contract
Samples: Merger Agreement (Barington/Hilco Acquisition Corp.)
Labor and Employment Matters. (a) The Shareholder’s Schedules contain a complete list of all written employment arrangements, pension, retirement, profit sharing and bonus plans, and deferred compensation, health, welfare, severance management, and other similar plans for the benefit of any employees of the Company, including employee plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Except for the Company’s 401(k) plan, the Company at present is not, and during the five (5) year period preceding the Closing Date will not have been, a sponsor of, party to or obligated to contribute to any employee benefit plan (as defined in § 3(3) of ERISA). The Company at present is not, and during the five (5) year period preceding the Closing Date will not have been, a party to any collective bargaining agreement. The Company has never been a member of a “controlled group of corporations” within the meaning of Section 3.16(a414(b) or (c) of the Seller Disclosure Letter contains Code and has never maintained a true and complete list of (a) all of the officers of the Seller and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided defined benefit pension plan or contributed to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries a multiemployer plan as of the date hereof, specifying their annual salary, hourly wages, age, position, status, length of service and the allocation of annual salary, bonus and other amounts paid and other benefits provided to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on defined in Section 3.16(a3(37) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractorERISA. The Seller has provided to the Purchaser trueTrue, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity Employee Benefit Plan have heretofore been delivered by the Company to the effect that the Seller Purchaser.
(b) With respect to each Employee Benefit Plan:
(i) there is no litigation, disputed claim (other than routine claims for benefits), governmental proceeding, inquiry or investigation pending or Threatened with respect to each such plan, its related trust, or any Subsidiary fiduciary, administrator or sponsor of such plan; and
(ii) each such plan has improperly classified as an independent contractor been established, maintained, funded and administered in all material respects in accordance with its governing documents, and any person named on Section 3.16(aapplicable provisions of ERISA, the Code and other Applicable Laws.
(c) All directors, officers, and employees of the Seller Disclosure Letter. Company, together with the current salaries, job descriptions, and locations of such directors, officers and employees are set forth in the Shareholder’s Schedules.
(d) Except as set forth in Section 3.16 of the Seller Disclosure LetterShareholder’s Schedules and as required under COBRA, neither the Seller nor any Subsidiary has made any verbal commitments Company is not obligated to and does not (directly or indirectly) provide death benefits or health care coverage to any such officers, former employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller and the Subsidiaries are actively at work (as defined in Section 5.12(a)) on the date hereof.
(b) Neither the Seller nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the National Labor Relations Board ("NLRB"). There is no existing, pending or, to the knowledge of the Seller, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving the Seller or any of its Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question relating to collective bargaining units at the premises of the Seller or any of its Subsidiaries or (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under any state or local plant closing notice law. No agreement, arbitration or court decision or governmental order in any way limits or restricts any of the Seller, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
(d) The Seller and its Subsidiaries are in compliance with all applicable Laws relating to employment and the payment of wages and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations of any federal or state wage and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiariesretirees.
(e) The Seller and each of its Subsidiaries are in compliance Company has complied with all immigration laws relating to Applicable Laws respecting employment andpractices, to terms and conditions of employment, wages and hours, equal employment opportunity, and the knowledge payment of social security and similar taxes. The Company is not engaged in any unfair labor practice. The Company has complied with all applicable provisions of the Seller, there are no citations, investigations, administrative proceedings or formal complaints Immigration Reform and Control Act of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries1986.
(f) There are no investigationsExcept as set forth in the Shareholder’s Schedules, administrative proceedings, charges the Company has not entered into any severance or formal complaints similar arrangement in respect of discrimination any present or former employee that will result in an obligation (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap absolute or veteran statuscontingent) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission Company to make any payment to any present or any federal, state former employee following termination of employment or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge upon consummation of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiariestransactions contemplated by this Agreement.
(g) If As of the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action planClosing Date, no discrimination claimexecutive officer, show-cause notice, conciliation proceeding, sanctions Key Employee or debarment proceedings is pending or, group of employees shall have ceased to be employed by the knowledge of the Seller, has been threatened against the Seller Company or any of its Subsidiaries expressed an intention to terminate his or her employment with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progressCompany.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending or, to the knowledge of the Seller, threatened before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against the Seller or any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance with respect to workers' compensation claims pursuant to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiums.
Appears in 1 contract
Labor and Employment Matters. (a) Section 3.16(a4.11(a) of the Seller Company Disclosure Letter contains Schedule sets forth a true true, correct and complete list of (a) all employees of the officers of the Seller Company and the Subsidiaries, specifying their position, age, length of service and the annual salary, bonus and allocation of amounts paid and other benefits provided to each of them, respectively, and annual rate of compensation and (b) all of the employees (whether full-time, part-time or otherwise) and independent contractors of the Seller and the Subsidiaries any Company Subsidiary as of the date hereof, specifying their annual salaryincluding any employee who is on a leave of absence of any nature, authorized or unauthorized, and sets forth for each such individual the following, on a no name basis: (i) title or position (including whether full or part time); (ii) hire date and service commencement date (if different); (iii) current annualized base salary or (if paid on an hourly basis) hourly rate of pay; and (iv) commission, bonus or other incentive based compensation. As of the date hereof, all compensation, including wages, agecommissions and bonuses, position, status, length of service due and the allocation of annual salary, bonus and other amounts paid and other benefits provided payable to each of them, respectively, consulting or other independent contractor fees, together with an appropriate notation next to the name of any officer or other employee on such list who is subject to any written employment agreement or any other written term sheet or other document describing the terms and/or conditions of employment of such employee or of the rendering of services by such independent contractor. Except as set forth on Section 3.16(a) of the Seller Disclosure Letter, neither the Seller nor any Subsidiary is a party to or bound by any material contracts, consulting agreements or termination or severance agreements in respect to any officer, employee or former employee, consultant or independent contractor. The Seller has provided to the Purchaser true, correct and complete copies of each such employment agreement, term sheet or other document. The Seller has not received a claim from any Governmental Entity to the effect that the Seller or any Subsidiary has improperly classified as an independent contractor any person named on Section 3.16(a) of the Seller Disclosure Letter. Except as set forth in Section 3.16 of the Seller Disclosure Letter, neither the Seller nor any Subsidiary has made any verbal commitments to any such officers, employees or former employees, consultants or independent contractors with respect to compensation, promotion, retention, termination, severance or similar matters in connection with the transactions contemplated by this Agreement or otherwise. Except as indicated on Section 3.16(a) of the Seller Disclosure Letter, all officers and employees of the Seller Company and the Subsidiaries are actively at work (as defined in Section 5.12(a)) any Company Subsidiary for services performed on or prior to the date hereofhereof have been paid in full (or accrued in full in the Financial Statements).
(b) Neither No employee of the Seller Company or any Company Subsidiary is represented by a labor union, works council, trade union, or similar representative of employees, and neither the Company nor any of its Subsidiaries Company Subsidiary is a party to, subject to, or bound by, any by a collective bargaining agreement or any other contracts, arrangements, agreements contract or understandings agreement with a labor union union, works council, trade union, or labor organization that was certified by the National Labor Relations Board ("NLRB")similar representative of employees. There are no, and there have never been any, strikes, lockouts or work stoppages existing or, to the Company’s knowledge, threatened, with respect to any employees of the Company or any Company Subsidiaries. There are no, and there have never been, any union certification or representation petitions or demands with respect to the Company or any Company Subsidiaries or any of their employees and, to the Company’s knowledge, no union organizing campaign or similar effort is pending or threatened with respect to the Company, any Company Subsidiaries, or any of their employees.
(c) There are no existing, Actions pending or, to the knowledge of the SellerCompany, threatened (i) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding against the Company or any other matter before Company Subsidiary by or on behalf of any of their respective current or former employees. No allegations of discrimination, harassment, or retaliation have been made against any executive, officer, or director of the NLRB Company or any Company Subsidiary and the Company has not entered into any settlement agreement or conducted any investigation related to allegations of sexual harassment or sexual misconduct made by or against an employee, contractor, director, officer or other comparable state agency against representative of the Company or involving any Company Subsidiary.
(d) Except in each case as would not reasonably be expected to result in material liability to the Seller Company or any of its the Company Subsidiaries, (ii) activity or proceeding by a labor union or representative thereof to organize any employees of the Seller or any of its Subsidiaries, (iii) certification or decertification question Company and the Company Subsidiaries are and have been at all times in compliance in all respects with all applicable Laws relating to collective bargaining units at the premises labor and employment, including all such Laws regarding employment practices, employment discrimination, terms and conditions of the Seller or any of its Subsidiaries or employment, mass layoffs and plant closings (iv) lockout, strike, organized slowdown, work stoppage or work interruption with respect to such employees.
(c) Neither the Seller nor any of its Subsidiaries has taken any action that would constitute a "Mass Layoff" or "Plant Closing" within the meaning of including the Worker Adjustment and Retraining Notification ("WARN") Act or would otherwise trigger notice requirements or liability under of 1988 and any similar state or local plant closing notice law. No agreementLaws), arbitration or court decision or governmental order in any way limits or restricts any immigration, meal and rest breaks, pay equity, workers’ compensation, family and medical leave and all other employee leaves, recordkeeping, classification of the Selleremployees and independent contractors, any of its Subsidiaries or the Purchaser from relocating or closing any of the operations of the Seller or any of its Subsidiaries.
wages and hours, pay checks and pay stubs, employee seating, anti-harassment and anti-retaliation (d) The Seller and its Subsidiaries are in compliance with including all applicable such Laws relating to employment the prompt and the payment of wages thorough investigation and benefits. There are no, and the Seller has no reason to believe there would be any, citations, investigations, administrative proceedings or formal complaints of violations remediation of any federal or state wage complaints) and hour laws pending or, to the knowledge of the Seller, threatened before the Department of Labor or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(e) The Seller and each of its Subsidiaries are in compliance with all immigration laws relating to employment and, to the knowledge of the Seller, there are no citations, investigations, administrative proceedings or formal complaints of violations of the immigration laws pending or threatened before the Immigration and Naturalization Service or any federal, state or administrative agency or court against or involving the Seller or any of its Subsidiaries.
(f) There are no investigations, administrative proceedings, charges or formal complaints of discrimination (including discrimination based upon sex, age, religion, marital status, race, national origin, sexual preference, disability, handicap or veteran status) pending or, to the knowledge of the Seller, threatened before the Equal Employment Opportunity Commission or any federal, state or local agency or court against or involving the Seller or any of its Subsidiaries. No discrimination, sexual harassment, retaliation and/or wrongful or tortious conduct claim is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries under the 1866, 1877, 1964 or 1991 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA, or any other federal law relating to employment or any comparable state or local fair employment practices act regulating discrimination in the workplace, and no wrongful discharge, libel, slander, invasion of privacy or other claim (including but not limited to violations of the Fair Credit Reporting Act, as amended, and any applicable whistleblower statutes) under any state or federal law is pending or, to the knowledge of the Seller, threatened against the Seller or any of its Subsidiaries.
(g) If the Seller or any of its Subsidiaries is a federal, state or local contractor obligated to develop and maintain an affirmative action plan, no discrimination claim, show-cause notice, conciliation proceeding, sanctions or debarment proceedings is pending or, to the knowledge of the Seller, has been threatened against the Seller or any of its Subsidiaries with the Office of Federal Contract Compliance Programs or any other Federal agency or any comparable state or local agency or court and no desk audit or on-site review is in progress.
(h) There are no citations, investigations, administrative proceedings or formal complaints of violations of local, state or federal occupational safety and health laws pending orrequirements, and except as would not reasonably be expected to result in material liability to the knowledge Company or any Company Subsidiary, neither the Company nor any Company Subsidiary is liable for any arrears of wages, penalties or other sums for failure to comply with any of the Seller, threatened foregoing. All employees of the Company and the Company Subsidiaries are employed on an “at-will” basis and their employment can be terminated at any time for any reason without notice or payment of severance or other compensation or consideration being owed to such individual other than amounts owed as of the date of termination from employment based on service before that date or as required under applicable Law. The Company’s relationships with all individuals who act as contractors or other service providers to the Company or its Subsidiaries can be terminated at any time for any reason without notice or any amounts being owed to such individual other than with respect to compensation or payments accrued before the Occupational Safety and Health Review Commission or any federal, state or local agency or court against or involving termination. Except in each case as would not reasonably be expected to result in material liability to the Seller Company or any of its the Company Subsidiaries.
(i) No workers' compensation or retaliation claim is pending against , each employee of the Seller or Company and each Company Subsidiary and any of its Subsidiaries in excess of $50,000 in the aggregate and the Seller maintains adequate insurance other individual who has provided services with respect to workers' the Company or any Company Subsidiary has been paid (and as of the Closing will have been paid) all wages, bonuses, compensation claims pursuant and other sums owed and due to insurance policies that are currently in force, or has accrued an adequate liability for such obligations, including, without limitation, adequate accruals with respect to accrued but unreported claims and retroactive insurance premiumsindividual as of such date.
Appears in 1 contract
Samples: Business Combination Agreement (BioPlus Acquisition Corp.)
