Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Schedules sets forth a list of each Benefit Plan and separately identifies as such each Purchased Company Benefit Plan. Sellers have made available to Buyer correct and complete copies of each Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company Benefit Plan, Sellers have made available to Buyer, to the extent applicable, (i) any related trust agreement or other funding instrument; (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS determination letter; and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports. (b) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation of any such determination letters. (c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made. (d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely made. (e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other events) will (i) result in any payment that is the Liability of any of the Purchased Companies becoming due to any Business Employee (as defined herein), (ii) increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction. (f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits). (g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary. (h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan. (i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities. (j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller. (k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees. (l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance. (m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan. (n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid. (o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request. (p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate. (q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing. (r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs. (s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information. (t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) months. (u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreement. (v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 2 contracts
Samples: Purchase Agreement (Hd Supply, Inc.), Purchase Agreement (Anixter International Inc)
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a3.7(a) of the Seller Disclosure Schedules Letter sets forth a list forth, as of the date hereof, each material Benefit Plan and separately identifies as such each Purchased Company Benefit material International Plan. Sellers have With respect to each material Benefit Plan (other than an International Plan), Seller has made available to Buyer Purchaser correct and complete copies of each Benefit Plan (or, to the extent that no such copy exists, an accurate written a description thereofof). In addition, with respect to in each Purchased Company Benefit Plan, Sellers have made available to Buyercase, to the extent applicable, (i) all plan documents, summary plan descriptions, summaries of material modifications, and amendments related to such plans and any related trust agreement or other funding instrument; agreement, (ii) the currently effective summary plan description required under ERISAmost recent Form 5500 Annual Report, (iii) the most recent IRS determination letter; audited financial statement and actuarial valuation, (iv) the most recent (A) Form 5500 all material filings and attached schedules, (B) audited financial statements correspondence with any Governmental Entity and (Cv) actuarial valuation reportsall material related agreements, insurance contracts and other agreements which implement each such Benefit Plan. Seller will make available to Purchaser each item in clauses (i) through (v) of the immediately preceding sentence with respect to a material International Plan within 30 days following the date of this Agreement.
(b) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” within the meaning of Section 401(a) of the Code Except as has received a favorable determination letter from the IRS as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could not had and would not reasonably be expected to result have, individually or in the revocation aggregate, a Business Material Adverse Effect, (i) each Assumed International Plan has been operated and administered in accordance with its terms and in compliance with applicable Law, including ERISA, the Code and, in each case, the regulations thereunder, (ii) all contributions or other amounts payable by Seller or its Subsidiaries pursuant to each Assumed International Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP or applicable international accounting standards, and (iii) as of the date hereof, there are no pending, or to Seller’s Knowledge, threatened or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any such determination lettersAssumed International Plan or any trusts related thereto.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company Seller or any Subsidiary of a Purchased Company its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full when duefull, and to Seller’s Knowledge no condition exists that could reasonably be expected is likely to result in Buyer incurring a cause Seller or its Subsidiaries or any of their ERISA Affiliates to incur any such liability. Within the last six (6) years, neither Seller nor any of its Subsidiaries has sponsored, maintained or incurred any Liability under with respect to an employee benefit plan subject to Section 302 or Title IV of ERISA by reason or Section 412, 430 or 4971 of the Code. None of Seller, its Subsidiaries or any Benefit Plan. No Benefit of their respective ERISA Affiliates has incurred or is reasonably expected to incur any Controlled Group Liability that has not been satisfied in full.
(d) Neither the Seller, its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the preceding six (6) years, contributed to, been obligated to contribute to or had any liability (including any contingent liability) with respect to any Multiemployer Plan subject to or a plan that has two (2) or more contributing sponsors, at least two (2) of whom are not under “common control” (within the minimum funding requirements meaning of Section 412 4063 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereofERISA), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely made.
(e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other events) will (i) result in any payment that is the Liability of any of the Purchased Companies becoming due to any Business Employee (as defined herein), (ii) increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits, including death or medical benefits in (whether or not insured), with respect of to current or former Business Employees beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or comparable U.S. state Law.
(f) Neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in conjunction with any other event) will, except as required by the terms of this Agreement, (i) coverage mandated solely by applicable Lawresult in any payment (including severance and unemployment compensation, forgiveness of indebtedness or otherwise) becoming due to any Business Employee from Seller or its Subsidiaries under any Benefit Plan or otherwise, (ii) death increase any benefits otherwise payable to any Business Employee under any Benefit Plan, (iii) result in any acceleration of the time of payment, funding or vesting of any benefits under any Benefit Plan or (iv) result in any payment (whether in cash or property or the vesting of property) from Seller or its Subsidiaries to any “pension plandisqualified individual” within the meaning of (as such term is defined in Treasury Regulations Section 3(21.280G-1) who is a Transferred Business Employee that would, individually or in combination with any other such payment from Seller or its Subsidiaries, constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of ERISAthe Code).
(g) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, each Assumed International Plan (i) has been operated in conformance with the applicable statutes or governmental regulations and rulings relating to such plans in the jurisdictions in which such Assumed International Plan is present or operates and, to the extent relevant, the United States, (ii) that is intended to qualify for special tax treatment meets all requirements for such treatment and (iii) benefits the full costs of which are borne by the Business Employee or his beneficiarythat is intended to be funded and/or book-reserved is fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A 3.7(h) of the Code. No Purchased Company Benefit Seller Disclosure Letter (i) contains a true and complete list of each International Plan is an International Benefit Planthat provides for defined benefit or termination indemnity benefits to Business Employees, and (ii) for which liabilities are recognized in the ordinary course of Seller’s financial reporting practice and, with respect to each such plan, indicates the net balance sheet asset or liability of such plan as of the last day of Seller’s most recently completed fiscal year.
(i) With respect to each International Benefit Plan: (i) all employer the Business Employees and employee contributions required by Law or by the terms of the International Benefit Plan Business Service Providers, Seller and its Subsidiaries are and have been madesince April 3, or, if applicable, accrued, 2015 in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing compliance with all applicable Governmental EntitiesLaws respecting labor, employment, immigration, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety, plant closings, mass layoffs, worker classification, exempt and non-exempt status, compensation and benefits, wages and hours and the Worker Adjustment and Retraining Notification Act of 1988, as amended, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.
(j) Set forth Seller has provided to Purchaser a complete and accurate list of each Business Employee as of the date hereof (such list, as updated from time to time pursuant to Section 5.6(c), the “Service Provider List”), and, with respect to each such individual, the following information, if applicable, to the extent permitted by applicable Law: (i) title or position; (ii) original date of hire or original commencement of service; (iii) whether full-time or part-time, whether hourly or salaried and whether exempt or non-exempt; (iv) if such individual was previously terminated and been rehired or recommenced service, the date of such termination, the date such individual was rehired or recommenced services and any applicable adjusted service date; (v) whether absent from active employment or service; (vi) annual salary or wage rate and, if applicable, target bonus, and other cash incentive compensation and unvested equity compensation; and (vii) any shift differentials or on Section 3.15(jcall pay. As soon as practicable following the date hereof (and in any event within 30 days of the date hereof), Seller shall provide Purchaser with an update to the Service Provider List, which shall be complete and accurate, in order to provide the information described in the immediately preceding sentence with respect to each Business Service Provider (in the case of clause (vi) of the immediately preceding sentence, indicating each Business Service Provider’s annualized consulting payments), and which update shall (A) identify whether each individual on the Service Provider List is an employee of Seller Disclosure Schedules is or one of its Subsidiaries, a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect Service Provider who provides services to the Business through an individual contract or a Business Service Provider who provides services to Business through a third party agency, (B) provide the name of each Business EmployeesEmployee and Business Service Provider, within (C) provide the last two target bonus, and other cash incentive compensation for such Business Employee or Business Service Provider for the prior twelve (212)-month period and such Business Employee’s or Business Service Provider’s equity compensation (including annual grants) yearsfor the prior three (3)-year period, there have been no actual(D) provide each Business Employee’s and Business Service Provider’s accrued unused vacation, sick and other paid-time-off eligibility, (E) if a Business Employee or Business Service Provider is absent from active employment or service, provide the type of absence, provide the date such absence commenced and the anticipated date of return to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns active employment or active service and (F) provide each Business Employee’s and Business Service Provider’s work stoppages against or affecting any Seller or any Affiliate of any Sellerlocation.
(k) With respect Every Business Employee as of the date hereof has been primarily dedicated to the Purchased Companies or Business since December 31, 2018 (or, for any such Business Employee hired after December 31, 2018, since the Current date of such Business EmployeesEmployee’s hire). Since December 31, 2018, no labor organization, union, works council, or group employee of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect its Subsidiaries who was primarily dedicated to the Business has been transferred to any division or any Current Business Employeesbusiness unit of Seller and its Subsidiaries other than the Business.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Sellerneither Seller nor any of its Subsidiaries is a party to, no Affiliate of or bound by, any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and Collective Bargaining Agreement. Except as has not been: been and would not reasonably be expected to be material to the Business, taken as a whole, (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of neither the Seller Disclosure Schedules nor any of its Subsidiaries is a true and correct list, as of (or has during the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last past two (2) years any written (ibeen) notice of any unfair subject to a material labor practice charge dispute, strike or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, work stoppage and (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, there are no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) months.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body organizational efforts with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary formation of a Purchased Company is a partycollective bargaining unit presently being made or, to the Seller’s Knowledge, threatened involving Business Employees.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Labor Relations; Employees and Employee Benefit Plans. (a) As of the date hereof, Seller has delivered to Purchaser a true and complete anonymized list of each Business Employee employed by Seller or any of its Affiliates as of the date hereof setting forth, to the extent permitted by applicable Data Protection Legislation, each such Business Employee’s (i) title/position, (ii) principal place of employment, (iii) status (active or on leave; full-time or part-time), (iv) hire date, (v) annual base salary or base wage rate, and (vi) target cash incentive compensation opportunity for 2022. No later than two (2) Business Days prior to the anticipated Closing Date, Seller shall deliver a revised version of such list which includes the name of each Business Employee employed by Seller or any of its Affiliates as of such date. 52
(b) Section 3.15(a3.14(b) of the Seller Disclosure Schedules sets forth a list of each material Benefit Plan as of the date of this Agreement. With respect to each such material Benefit Plan, Seller has made available, or will make available as soon as reasonably practicable, to Purchaser (as applicable) the plan document embodying such material Benefit Plan and separately identifies as such each Purchased Company Benefit Plan. Sellers have made available to Buyer correct and complete copies of each Benefit Plan all amendments thereto (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company material Benefit Plan that is not an Assumed Plan, Sellers have a summary of the terms thereof). With respect to each Assumed Plan, Seller has made available to Buyer, to the extent applicable, Purchaser (i) any related trust agreement or other funding instrument; the most recent annual report and accompanying schedules, (ii) the currently effective most recent summary plan description required under ERISAand any summaries of material modifications relating to such Assumed Plan, (iii) the most recent IRS determination letter; and or opinion letter received from the U.S. Internal Revenue Service (“IRS”) regarding the tax-qualified status of such Assumed Plan, (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements written results of all required compliance testing and (Cv) actuarial valuation reportscopies of any material correspondence with the IRS, U.S. Department of Labor or other Governmental Entity.
(bc) Each Benefit Assumed Plan has been established, operated and funded in which material compliance with applicable Law and the terms of such Assumed Plan, in each case, as it relates to the Business Employees. As of the date of this Agreement, there are no material Proceedings pending or, to the Knowledge of Seller, threatened in writing involving any Assumed Plan to the extent they relate to any Business Employees participate (other than routine claims for benefits).
(d) With respect to each Assumed Plan that is intended to be qualify under Section 401(a) of the Code, such plan, and its related trust, has at all times since its adoption been so qualified and has received a current determination letter (or is the subject of a current opinion letter in the case of any prototype plan) from the IRS on which Seller and its Affiliates can rely that it is so qualified and that its trust is exempt from tax under Section 501(a) of the Code, and nothing has occurred with respect to the operation of any such plan which could cause the loss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code.
(e) In respect of Benefit Plans subject to the Laws of the United States, no Assumed Plan is, and none of Seller or any of its Subsidiaries or any of their respective ERISA Affiliates have ever sponsored, established, maintained, contributed to, or been required to contribute to, or in any way has any liability (whether on account of an ERISA Affiliate or otherwise), directly or indirectly, with respect to, any plan that is, (i) subject to Title IV or Section 302 of ERISA or Section 412, 430 or 4971 of the Code or a “qualifieddefined benefit” plan within the meaning of Section 401(a414(j) of the Code or Section 3(35) of ERISA (whether or not subject thereto), (ii) a Multiemployer Plan, (iii) a plan that has received two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA, (iv) a favorable determination letter from the IRS “multiple employer welfare arrangement” (as to its qualification defined in Section 3(40) of ERISA), or is (v) a plan maintained in the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance connection with any trust described in Section 501(c)(9) of the determination letters referred to in this clause Code. None of Seller or any of its Subsidiaries has withdrawn at any time within the preceding six (b6) years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that could reasonably be expected to result in the revocation of any such determination lettersLiability to Seller or any of its Subsidiaries.
(cf) Each Purchased Company Benefit No Assumed Plan has been operated in material compliance with its terms and applicable Law. All contributionsprovides for any post-employment or post-retirement health or welfare benefits to any Business Employee (or dependents or beneficiaries thereof), premiums and expenses except as otherwise required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 4980B of the Code or Section 302 any other applicable Law, or where the cost of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to benefit is borne by the terms of a Benefit Plan or otherwise) have been timely madeBusiness Employee.
(eg) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedulesrequired by applicable Law or as expressly contemplated by this Agreement, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transactions (whether alone or together with any other events) will (i) result in any payment that is becoming due, or increase the Liability amount of any of the Purchased Companies becoming due compensation or benefits due, to any Business Employee (as defined herein)or with respect to any Assumed Plan, (ii) increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee or 53 Employee, (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company payments or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISAdue to, or (iii) benefits the full costs forgiveness of which are borne by the indebtedness of, any Business Employee or his beneficiary(iv) result in an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under any Assumed Plan.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on in Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o3.14(h) of the Seller Disclosure Schedules is a true and correct listcomplete list of each collective bargaining or other material written labor agreement with any labor union, works council or other collective employee representative group or body to which any Business Employee is subject (excluding any such agreements that apply at a national or industry-wide level) (each, a “Collective Bargaining Agreement”), which list is true and complete as of the date hereofof this Agreement. Since January 1, of each Current Business Employee2020, and for each Current Business Employee such Current Business Employee’s (i) name there have been no strikes, lockouts, concerted slowdowns, work stoppages, unfair labor practice charges, material labor arbitrations, or other material labor dispute, disruption or controversy in effect or, to the Knowledge of Seller, threatened, by or against Business Employees and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set Knowledge of Seller, no campaigns or proceedings have been conducted to authorize union, works council or other collective representative of any Business Employees. Except as set forth on in Section 3.15(p3.14(h) of the Seller Disclosure Schedules Schedules, the consent or consultation of, or the rendering of formal advice by, any labor union, works council, or other collective employee representative group or body is a true and correct list not required by applicable Law or any agreement for Seller or any of each independent contractor who provides services its Subsidiaries to enter into this Agreement or to consummate the Business (including each outside sales representative), and each such individual’s Transactions.
(i) name and functionSince January 1, (ii) principal work location2020, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, there has been no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current any labor union, works council, or former independent contractor (including any outside sales representative) other collective employee representative group or body representing same, or otherwise arising from Seller’s or any applicant for of its Subsidiaries’ labor or employment policies or engagement or any classes practices in respect of the foregoingBusiness Employees, pending or, to the Knowledge of Seller, threatened which, if adversely decided, would reasonably be expected to be, individually or in the aggregate, material to the GES Business, taken as a whole. Neither Seller nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to Seller’s or its Subsidiaries’ employment practices in respect of the Business Employees.
(rj) Each SellerSince January 1, each Affiliate of any 2020, with respect to the Business Employees, Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has its Affiliates have been in material compliance in all material respects with all notice applicable Laws relating to employment, employment practices, compensation, benefits, hours, terms and other requirements under conditions of employment, and the termination of employment, including any obligations pursuant to the Worker Adjustment and Retraining Notification Act and any of 1988 (or similar foreign, state Laws) or local Law relating to plant closings the classification of employees as exempt or non-exempt from overtime pay requirements, labor relations and layoffscollective bargaining, employee information and consultation obligations, the provision of meal and rest breaks, pay for all working time, leaves of absence, immigration and work authorization, equal employment opportunities (including the prevention of discrimination, harassment, and retaliation), equal pay, occupational safety and health, the use of non-employee contractors, and the proper classification of individuals as non-employee contractors or consultants.
(sk) To Since January 1, 2020, with respect to the GES Business, neither Seller nor any of its Affiliates has closed any site of employment, effectuated any material group layoffs of employees or implemented any material early retirement, exit incentive, or other group separation program, sufficient to trigger application of the Worker Adjustment and Retraining Notification Act of 1988 (or similar Laws), nor has Seller or any of its Subsidiaries planned or announced any such action or program for the future relating to the Business Employees.
(l) Since January 1, 2020, no employee or former employee of the GES Business with a job title of Executive Director or Vice President or above has been the subject of a pending or, to the Knowledge of SellersSeller, no Business Employee threatened, allegation of sexual harassment or independent contractor is sexual assault in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee connection with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Seller or its Subsidiaries. Neither Seller nor any of its Subsidiaries has, since January 1, 2020, entered into any settlement agreement with a Business in the next six (6) monthsEmployee involving allegations of sexual harassment or sexual misconduct.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (S&P Global Inc.)
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Schedules sets forth a true and complete list of each material Benefit Plan and separately identifies as such each material Purchased Company Benefit Plan. Sellers have made available to Buyer correct Plan and complete copies of each Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company such Benefit Plan, Sellers have Seller has made available to BuyerPurchaser, to the extent applicable, (i) a correct and complete copy of each such plan (or a description, if such plan is not written) and all amendments thereto, (ii) any related trust agreement or other funding instrument; (ii) the currently effective summary plan description required under ERISAinstrument and amendments thereto, (iii) the most recent IRS determination letter or opinion letter; and , (iv) the current prospectus or summary plan description and all summaries of material modifications, (v) the most recent (A) Form 5500 and attached schedules, schedules and (B) audited financial statements actuarial valuation report, (vi) all material documents and correspondence relating thereto received from or provided to the IRS, the U.S. Department of Labor, the PBGC or any other Governmental Entity or the plan sponsor of any Multiemployer Plan during the past year, and (Cvii) actuarial valuation reportsif such plan is an International Benefit Plan, documents that are substantially comparable (taking into account differences in applicable Law and practices) to the documents required to be provided in clauses (i) through (vi).
(b) (i) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification qualification, or is in has applied to the process of obtaining IRS for such a letter and, to within the Knowledge of Sellers, applicable remedial amendment period or such period has not expired and no event has occurred since the issuance of the determination letters referred to in this clause (b) circumstances exist that could reasonably be expected to result in any such letter being revoked or not being issued or reissued or a penalty under the revocation IRS Closing Agreement Program if discovered during an IRS audit or investigation, (ii) each trust created under any such Benefit Plan is exempt from Tax under Section 501(a) of the Code and has been so exempt since its creation and (iii) no events have occurred with respect to any Benefit Plan that could result in payment or assessment by or against Purchaser of any such determination lettersmaterial excise tax, fine, Lien, penalty or Liability under ERISA, the Code or other applicable Law.
(c) Each Purchased Company Benefit Plan has been maintained, funded and operated in material compliance with its terms and applicable Law. All returns, reports and disclosure statements required to be made under applicable Law with respect to all Benefit Plans have been timely filed or delivered in all material respects. Neither Seller nor, to the Knowledge of Seller, any of its directors, officers, employees, agents, plan fiduciaries, plan trustees or plan administrators of any Benefit Plan or trust created under any Benefit Plan, has engaged in or been a party to any non-exempt “prohibited transaction” as defined in Section 4975 of the Code and Section 406 of ERISA that has not been corrected. Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect and would not reasonably be expected to impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby, all contributions, premiums and expenses payments required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the a Benefit Plan or any agreement relating thereto, thereto have been timely mademade in all material respects, and all contributions, premiums and payments for any period before the Closing Date that are not due are in all material respects properly accrued to the extent required to be accrued under applicable accounting principles and have been properly reflected in all material respects on the Business Balance Sheet or disclosed in the notes thereto. For purposes of this Section 3.15(c), “Benefit Plan” shall not include any Collective Bargaining Agreement.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, (i) no Benefit Plan is (A) a plan subject to Title IV of ERISA, is ERISA or Section 412 of the Code; or (B) a Multiemployer Plan and (ii) following the Closing Date, neither Purchaser nor any Purchased Company will have, or is a “multiple employer welfare arrangement” within be reasonably expected to have, any direct or indirect liability or contingent liability solely due to entering into this Agreement or the meaning completion of Section 3(40the Transaction with respect to, (A) of ERISA. No liability under any plan subject to Title IV of ERISA has been incurred by or Section 412 of the Code or (B) a Multiemployer Plan. With respect to any SellerMultiemployer Plan in which a Business Employee participates in connection with his or her employment with the Business, any Purchased Company or any Subsidiary of a Purchased Company or neither Seller nor any of their respective its ERISA Affiliates that has not been satisfied in full when due, received notice and Seller has no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason Knowledge of any Benefit such Multiemployer Plan. No Benefit Plan subject ’s (i) failure to satisfy the minimum funding requirements of Section 412 of the Code or application for or receipt of a waiver of such minimum funding requirements, (ii) “endangered status” or “critical status” (within the meaning of Section 302 432 of the Code) or (iii) insolvency, “reorganization” (within the meaning of Section 4241 of ERISA) or proposed or threatened termination. All contributions, surcharges and premium payments owed by Seller, any Purchased Subsidiary and their respective ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made Affiliates with respect thereto (whether pursuant to the terms of a Benefit each such Multiemployer Plan or otherwise) have been timely madepaid when due in all material respects.
(e) Except as set forth in Section 3.15(e) of the Seller Disclosure Schedules, none of Seller or any of its Subsidiaries has any material current or projected Liability for, and no Benefit Plan provides or promises, any material post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any current or former Business Employee, including such benefits as required by a Collective Bargaining Agreement (other than coverage mandated by applicable Law, including COBRA).
(f) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect and would not reasonably be expected to impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby, other than claims by Business Employees or their beneficiaries for benefits received in the ordinary course of business consistent with past practice under a Benefit Plan, no Action is pending against, involves, or, to the Knowledge of Seller, is threatened against or is threatened to involve any Benefit Plan before any arbitrator or Governmental Entity, including the IRS, the U.S. Department of Labor or the PBGC (or similar non-U.S. Governmental Entity) and there has been no such Action in the past three (3) years. For purposes of this Section 3.15(f), “Benefit Plan” shall not include any Multiemployer Plan.
(g) Neither Seller nor any of its Subsidiaries has any obligation to gross up, indemnify or otherwise reimburse any current or former Business Employee for any Tax incurred by such Business Employee, including under Section 409A, 457A or 4999 of the Code.
(h) Except as would not reasonably be expected to, individually or in the aggregate, result in material Liability for the Business, Purchaser or any Purchased Company, each Benefit Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Sections 409A or 457A of the Code has been timely amended (if applicable) to comply and is and in the past three (3) years has been operated in compliance with all applicable requirements of Sections 409A and 457A of the Code.
(i) Except as set forth in Section 3.15(i) of the Seller Disclosure Schedules or would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect and would not reasonably be expected to impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby, each International Benefit Plan (A) is and in the past three (3) years has been maintained and administered in compliance with its terms, including, for the avoidance of doubt, the terms of any Collective Bargaining Agreement, and all applicable Laws, (B) if intended to qualify for special Tax treatment, meets all the requirements for such treatment, and (C) if required, to any extent, to be funded, book-reserved or secured by an insurance policy of Seller, a Purchased Subsidiary or any of their respective Affiliates, is funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
(j) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect and would not reasonably be expected to impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby, no International Benefit Plan has been declared to be fully or partially wound up, nor has any act or event occurred pursuant to which any International Benefit Plan could be ordered to be wound up, in whole or in part, by any Governmental Entity.
(k) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect and would not reasonably be expected to impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby, no event has occurred that would subject Seller or any Purchased Company to the imposition of any material penalty or Liability with respect to the administration of any International Benefit Plan.
(l) Except as required by applicable Law or as set forth on Section 3.15(e3.15(l) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transaction (whether alone or together with any other events) will (i) result in entitle any current or former Business Employee to any payment that is the Liability of or benefit, including any of the Purchased Companies becoming due to any Business Employee (as defined herein)material bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of material compensation or benefits under, or materially increase the amount payable or trigger any benefits otherwise payable by other obligation under, any of the Purchased Companies to or in respect of any Business Employee or Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of amount that would not be deductible under Section 280G of the Code by reason or (iv) limit or restrict any right to merge, materially amend or terminate any Purchased Company Benefit Plan or with respect to the Transferred Business Employees, any Assumed Benefit Plan (subject to appropriate notification to the insurer or administrator, and to the payment of benefits due as of, or claims incurred prior to, the Transactionmerger, amendment or termination of such Benefit Plan).
(fm) There are Section 3.15(m) of the Seller Disclosure Schedules contains a true and complete list of the following information in respect of Business Employees, as of the date that is no more than thirty (30) days prior to the date of this Agreement: (i) subject to applicable Law, title, hire date and location; (ii) whether full- or part-time; (iii) whether active or on leave (and, if on leave, the nature of the leave and, if available, the expected return date); and (iv) whether exempt from the U.S. Fair Labor Standards Act.
(n) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect and would not reasonably be expected to impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby, (i) Seller and its Subsidiaries (with respect to the Business) and the Purchased Companies are, and have been in the past three (3) years, in compliance with all applicable Laws relating to labor and employment, including those relating to labor-management relations, wages, hours, overtime, classification of employees as exempt from overtime pay requirements, classification of non-employee contractors, discrimination, sexual harassment, civil rights, affirmative action, work authorization, immigration, occupational safety and health, information privacy and security, workers’ compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes, and (ii) in the past three (3) years, there have been no Actions pending or, to the Knowledge of SellersSeller, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business Business, the Purchased Assets, the Assumed Liabilities or against the Purchased Companies before any Governmental Entity, including the U.S. Equal Employment Opportunity Commission or any Current Business Employees.
(l) With respect to Business Employees similar state, local or foreign agency responsible for the administration and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate enforcement of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paidLaws.
(o) Set forth on Section 3.15(oSeller and its Subsidiaries (with respect to the Business) of and the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business EmployeePurchased Entities are, and for each Current Business Employee such Current Business Employee’s have been in the past three (i3) name years, in material compliance with the WARN Act and job titlehave no material unsatisfied Liabilities thereunder. None of Seller or any of its Subsidiaries (with respect to the Business) or any Purchased Subsidiary has, within the ninety (ii90) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days days prior to the date of this Agreement, closed any plant or facility, effectuated any mass layoffs of employees or implemented any early retirement, separation or similar program, in each case, in violation of the WARN Act, nor has Seller or any of its Subsidiaries (with respect to the Business) or any Purchased Subsidiary announced any such action or program for the future, or taken any other action that would reasonably be expected to cause Purchaser or any Purchased Subsidiary to have any material Liability or other obligation following the Closing and at Buyer’s reasonable requestDate under the WARN Act.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellerscomplete list, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 each Collective Bargaining Agreement. Except as set forth on Section 3.15(p) of the Seller Disclosure Schedules, none of Seller or above has given or has been given, notice any of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six its Subsidiaries (6) months.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions contemplated by this Agreement Business), any Purchased Subsidiary or under any of their respective Subsidiaries is a party to or bound by, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement.
(v, and, to the Knowledge of Seller, there has not been any organizational campaign or petition or other unionization activity seeking recognition of a collective bargaining unit relating to any Business Employee. Except as set forth on Section 3.15(p) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result Seller Disclosure Schedules, none of Seller or any of its Subsidiaries (with respect to the Business), the Purchased Subsidiaries or any of their respective Affiliates has failed to comply in any breach or other violation material respect with the provisions of any Collective Bargaining Agreement, employment Contract, independent contractor (including and there are no material grievances outstanding relating to the Business under any outside sales representative) Contract, such agreement. There are no material unfair labor practice complaints pending or threatened with respect to the Business or the Purchased Companies before the U.S. National Labor Relations Board or any other material labor-related agreement Governmental Entity. There are no, and in the past three (3) years there have been no, strikes, labor disputes, work stoppages, picketings or lockouts pending or, to which the Knowledge of Seller, threatened involving Business Employees.
(q) With respect to any Purchased Company Collective Bargaining Agreement set forth on Section 3.15(p) of the Seller Disclosure Schedules, no consent or Subsidiary consultation of, requirement to provide information to, or the rendering of, or receipt of a Purchased Company an opinion or formal advice by, any labor or trade union, works council or other employee representative body or any Governmental Entity with jurisdiction over labor matters is a partyrequired for any Seller Entity to enter into this Agreement or to consummate the Transaction.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a3.10(a) of the Seller Disclosure Schedules sets forth a list of Schedule identifies each material Seller Benefit Plan and each Transferred Benefit Plan, including each material Delayed Employee Transferred Benefit Plan, as of the date of this Agreement and separately identifies as such each Purchased Company material Transferred Benefit Plan and material Delayed Employee Transferred Benefit Plan. Sellers have Seller has made available to Buyer correct and complete copies of each such material Seller Benefit Plan and each such Transferred Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company Transferred Benefit Plan and each International Pension Plan, Sellers have Seller has made available to Buyer, to the extent applicable, (i) any related trust agreement or other funding instrument; (ii) the currently effective current summary plan description required under ERISAand any material modifications thereto, if any; and (iii) the most recent IRS determination letter; and (iv) if applicable, the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (CB) actuarial valuation reports.
(b) Each Section 3.10(b) of the Seller Disclosure Schedule identifies each Benefit Plan in which Business Employees participate that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (each, a “Qualified Plan”). Each Qualified Plan has received a favorable determination letter from the IRS or opinion letter as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of SellersSeller, no fact or event has occurred since the issuance date of the determination such letter or letters referred to in this clause (b) that could would reasonably be expected to result in the revocation of any such determination lettersletter or adversely affect the qualified status of such Benefit Plan or the related trust.
(c) Each Purchased Company Transferred Benefit Plan and International Pension Plan has been operated in material compliance with its terms and applicable Law. All Except as would not reasonably be expected to result in, individually or in the aggregate, material Liability to the TMA Business, all (i) contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the a Transferred Benefit Plan or International Pension Plan or any agreement relating thereto, thereto have been timely mademade or are accrued in accordance with the Accounting Principles, (ii) premiums due or payable with respect to insurance policies funding any Transferred Benefit Plan or International Pension Plan for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, accrued in accordance with the Accounting Principles, and (iii) with respect to each Benefit Plan in which the assets of such Benefit Plan does not equal or exceed the Liabilities of such Benefit Plan, including any accrued vacation, sick leave, personal time or pension benefits, the Liability with respect to such Benefit Plan is accrued in accordance with the Accounting Principles. Except as would not reasonably be expected to result in, individually or in the aggregate, material Liability to the TMA Business, the records and accounts in respect of any Transferred Benefit Plan have been kept in accordance with applicable Law.
(d) Except as set forth on Section 3.15(d) of the No Seller Disclosure Schedules, no Benefit Plan or Transferred Benefit Plan is subject to Title IV of ERISA, is Section 412 of the Code, a Multiemployer Plan or is a “multiple employer welfare arrangement” plan that has two or more contributing sponsors at least two of whom are not under common control within the meaning of Section 3(40) 4063 of ERISA. No liability under Title IV of ERISA has been incurred by There does not now exist, nor do any Sellercircumstances exist that could result in, any Purchased Company or any Subsidiary Controlled Group Liability that would be a material liability of a Purchased Company Buyer or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to its Subsidiaries following the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely madeClosing.
(e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other events) will (i) result in any payment that is the Liability of any of the Purchased Companies becoming due to any Business Employee (as defined herein), (ii) increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) months.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 1 contract
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Schedules sets forth forth, as of the date of this Agreement, a list of each material Benefit Plan and separately identifies as such each Purchased Company material Neptune Entity Benefit Plan. Sellers have made available to Buyer correct and complete Purchaser copies of each such material Benefit Plan (or, to the extent that if no such copy exists, an accurate a written description thereof). In addition, with respect to each Purchased Company material Neptune Entity Benefit Plan, Sellers have made available to BuyerPurchaser, to the extent applicable, (i) any related trust agreement or other funding instrument; , (ii) the currently effective summary plan description required under ERISAbooklet, (iii) the most recent IRS determination letter; recently audited financial statements, annual filings, and filed actuarial valuation reports with any Governmental Entity, (iv) any material communications regarding any deficiencies with respect to any Defined Benefit Plan with any Governmental Entity and (v) any material communications with the most recent Business Employees regarding (A) Form 5500 and attached schedulesany material modifications to any existing such Neptune Entity Benefit Plan, or (B) audited financial statements and (C) actuarial valuation reportsthe intention to adopt or establish any material compensation or benefits arrangements which would, if in existence as of the date of this Agreement, constitute any such Neptune Entity Benefit Plan.
(b) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS Except as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could would not reasonably be expected to result be material and adverse to the Neptune Entities, taken as a whole, (i) each Neptune Entity Benefit Plan has been registered (if required), operated, administered, funded and invested in compliance with its terms, applicable Collective Bargaining Agreements and applicable Law, and (ii) all contributions and payments required to be made by applicable Law to any Governmental Entity with respect to any Business Employees, or by the revocation terms of any such determination lettersa Neptune Entity Benefit Plan or applicable Collective Bargaining Agreements have been timely made or accrued in accordance with IFRS in effect as of the date of this Agreement.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and Except as required by applicable Law. All contributions, premiums and expenses required to be made to applicable Collective Bargaining Agreements or paid as provided in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely made.
(e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedulesthis Agreement, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transaction (whether alone or together with any other events) will (i) result in any material payment that is the Liability of any of the Purchased Companies Neptune Entity becoming due to any Business Employee (as defined hereinincluding, without limitation, any bonus, change of control payment, retirement, severance, retirement allowance or retention payment), (ii) materially increase any benefits otherwise payable by any of the Purchased Companies Neptune Entity to or in respect of any Business Employee or Employee, (iii) result in the acceleration of the time of payment payment, funding or vesting of any such benefits. No Purchased Company , or Subsidiary of a Purchased Company is a party (iv) trigger any funding obligation under any Neptune Entity Benefit Plan.
(d) Except where the failure to any plando so, program, policy, agreement or arrangement that could result, separately individually or in the aggregate, in would not reasonably be expected to be material and adverse to the payment of any “excess parachute payments” within the meaning of Section 280G Neptune Entities, taken as a whole, each of the Code by reason of the Transaction.
(f) There are no pending orNeptune Entities, since January 1, 2016, has, to the Knowledge of the Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects complied with all applicable Laws respecting pertaining to the employment and or termination of employment practicesof their respective Business Employees, including all laws respecting terms such Laws relating to employment practices and conditions standards, labor relations, equal employment opportunities, employment equity, pay equity, privacy, Charter of employmentthe French Language (Quebec), classification of employees and independent contractors, occupational health and safety, wages and hoursworker’s compensation, child labor, immigrationharassment, employment discriminationinsurance, disability safety and accessibility for people with disabilities requirements, human rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employmentlegislation, wages and hours of workwork and, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes the Knowledge of the foregoingSellers, there are no outstanding claims, complaints, charges, proceedings or investigations under any such Laws.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(se) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary none of $100,000 the Neptune Entities has any obligation to reinstate any employees or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) monthsformer employees.
(uf) Each SellerNo event has occurred and, each Affiliate to the Knowledge of the Sellers, no condition or circumstance exists, that has resulted in or could reasonably be expected to result in any Neptune Entity Benefit Plan which is a Defined Benefit Plan being ordered, or required to be, terminated or wound-up in whole or in part, having its registration under applicable Laws refused or revoked, being placed under the administration of any Seller trustee or receiver or Governmental Entity or being required to pay any Taxes, except as would not reasonably be expected to result in a material liability to the Neptune Entities, taken as a whole.
(g) Except as would not reasonably be expected to result in a material liability to the Neptune Entities, taken as a whole, all individuals engaged and each compensated by the Neptune Entities as consultants or independent contractors are properly classified as such under applicable Law, and all Business Employees excluded from employment standards legislation under applicable Law are properly classified.
(h) During the sixteen (16) weeks prior to the date of this Agreement, no Neptune Entity has taken any action that would reasonably be expected to constitute a “mass termination” or “collective dismissal” as defined in the applicable employment standards legislation affecting any Business Employee.
(i) No Persons other Purchased Company than Business Employees or Subsidiary of their dependents participate in the Neptune Entity Benefit Plans and no entity other than a Purchased Company is Neptune Business Entity participates or sponsors a Benefit Plan for the Business Employees or their dependents.
(j) Except where the failure to do so, individually or in the aggregate, would not reasonably be expected to be material compliance with any requirement and adverse to inform or consult with any labor organizationthe Neptune Entities, uniontaken as a whole, works council or employee representative body with respect to each Neptune Entity Benefit Plan, there are no actions, suits or claims pending or, to the transactions contemplated by this Agreement or under Knowledge of the Sellers, threatened, (other than routine claims for benefits) including any Collective Bargaining AgreementProceeding.
(vk) The execution Section 3.15(k) of the Seller Disclosure Schedules sets forth, as of the date of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, a list of each collective bargaining agreement of Sellers or any other material labor-related agreement of their Subsidiaries to which any Purchased Company Business Employees are subject (collectively, the “Collective Bargaining Agreements”) and no Collective Bargaining Agreement is, as of the date of this Agreement, currently being negotiated by the Sellers or Subsidiary the Neptune Entities. None of a Purchased Company the Neptune Entities is a partyparty to or bound by any other labour agreement and there are no labour unions, employee associations or other organizations with bargaining rights (either acquired by certification or voluntary recognition) representing, nor to the Sellers’ Knowledge, purporting to represent or attempting to represent any Business Employees. Except as would not reasonably be expected to result in a material liability to the Neptune Entities, taken as a whole: (i) the Sellers and the Neptune Entities are not in breach of the Collective Bargaining Agreements. There are no outstanding labour or employment Proceedings of any kind (including unfair labour complaints, grievances, arbitrations or applications for declaration of successor employer) respecting the Business or the Neptune Entities. During the two (2)-year period immediately prior to the date of this Agreement, there have been no strikes, walkouts, work stoppages, slow-downs or lockouts involving Business Employees.
(l) Section 3.15(l) of the Seller Disclosure Schedules sets forth, as of the date of this Agreement, a complete and accurate list of each Business Employee and consultant to the Business which sets forth the following information with respect to each: (i) age (except where information regarding age is not gathered in the ordinary course of business with respect to consultants); (ii) date of hire or engagement; (iii) title or position; (iv) the entity or entities by which such employee is employed or consultant is engaged; (v) current wage/compensation rate (e.g. salary, hourly, contract period, commission, consulting fee) and last bonus, as applicable; (vi) active or inactive status and, if applicable, the reason for the inactive status and anticipated return to work date; (vii) full-time or part-time status; (viii) employment location; and (ix) union affiliation.
(m) Except as set forth in Section 3.15(l) of the Seller Disclosure Schedules, no employment agreement (whether oral or written) provides for a contractual termination provision, except as would otherwise exist in respect of the termination of an employee at common law.
(n) Any other representation or warranty contained in this Article III notwithstanding, the representations and warranties contained in this Section 3.15 constitute the sole representations and warranties of Sellers relating to employees and Benefits Plans.
Appears in 1 contract
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Schedules sets forth as of the date of this Agreement a list of each Business Employee, each Business Employee’s date of hire, job title, location, status (exempt/non-exempt, full-time/part-time), current base salary or wage rate, and target annual quarterly or other bonus opportunity for 2021.
(b) Section 3.15(b) of the Seller Disclosure Schedules sets forth, as of the date of this Agreement, a list of each material Benefit Plan and separately identifies as such each Purchased Company Entity Benefit Plan. Sellers have Seller has made available to Buyer Purchaser correct and complete copies of each such Purchased Entity Benefit Plan (or, to the extent that if no such copy exists, an accurate a written description thereof)) and any summary plan descriptions. In addition, with respect to each Purchased Company Entity Benefit Plan, Sellers have Seller has made available to BuyerPurchaser, to the extent applicable, (i) any related trust agreement or other funding instrument; , and (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS determination letter; and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports.
(bc) Each With respect to each Purchased Entity Benefit Plan, except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Business and the Purchased Entities: (i) each Purchased Entity Benefit Plan has been operated in which compliance in all material respects with its terms and applicable Law, and (ii) all material contributions required to be made by applicable Law or by the terms of a Purchased Entity Benefit Plan have been timely made or accrued in accordance with GAAP. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Business Employees participate and the Purchased Entities, there are no material Proceedings (other than Proceedings for benefits in the ordinary course of business consistent with past practice) pending, or to the Knowledge of Seller, threatened against any Purchased Entity Benefit Plan.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Business and the Purchased Entities, each Purchased Entity Benefit Plan that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification or is in the process of obtaining such a letter qualification, and, to the Knowledge of SellersSeller, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation or loss of any such determination letterstax qualified status.
(ce) Each No Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Entity Benefit Plan is subject to Title IV of ERISA, and neither Seller nor any of its Affiliates in respect of any Business Employee, nor any of the Purchased Entities has, within the prior six (6) years, maintained, sponsored or contributed to a plan subject to Title IV of ERISA. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Business and the Purchased Entities, no events have occurred with respect to any Benefit Plan or Purchased Entity Benefit Plan that would reasonably be expected to subject the Purchaser or the Purchased Entities or any of their respective Affiliates to any material excise or penalty Taxes under the Code, ERISA or other applicable Laws.
(f) Neither Seller nor any of its ERISA Affiliates contributes to or is required to contribute to a Multiemployer Plan or is a “multiple employer welfare arrangement” plan within the meaning of Section 3(40413(c) of ERISA. No liability under Title IV of ERISA has been incurred by any Sellerthe Code, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made each case with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely madeBusiness Employees.
(eg) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedulesrequired by applicable Law or as provided in this Agreement, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transaction (whether alone or together with any other events) will (i) result in any material payment that is the Liability of any of the Purchased Companies Business becoming due to any Business Employee (as defined herein)Employee, (ii) materially increase any benefits otherwise payable by any of the Purchased Companies Business to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained Section 3.15(h) of the Seller Disclosure Schedules sets forth, as of the date of this Agreement, a list of each collective bargaining agreement of Seller or any of its Subsidiaries to which any Business Employees are subject (collectively, the “Collective Bargaining Agreements”). During the three (3)-year period immediately prior to the extent applicable in material compliance with Section 409A and Section 457A date of the Code. No Purchased Company Benefit Plan is an International Benefit Planthis Agreement, there have been no strikes or lockouts involving Business Employees.
(i) With respect to each International Benefit Plan: the Purchased Entities:
(i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Each Purchased Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certificationis, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller at all relevant times has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives)been, each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting and orders with respect to labor relations, employment and employment practices, including all laws respecting occupational safety and health standards, terms and conditions of employmentemployment or services, payment of wages or other compensation, minimum wages, overtime, classification of employees and independent contractorsemployees, health and safetyemployment equality, wages and hours, child laborage discrimination, immigration, employment discriminationvisa, disability rights or benefitswork status, equal opportunityhuman rights, plant closures pay equity and layoffs, affirmative action, workers’ compensation, and is not engaged in any unfair labor relationspractice. The employment or services of each former employee, employee leave issues consultant or contractor of the Purchased Entities was terminated in material compliance with all applicable Laws, and unemployment insurancethe Purchased Entities do not have, and would not reasonably be expected to have, any material Liability with respect to any such former employees, consultants or contractors for any such termination of employment or services.
(mii) With respect Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Business or Current Business Employeesand the Purchased Entities, no Sellertaken as a whole, no Affiliate of any Seller and no other all individuals performing services for the Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a Entities are correctly classified in all material respects under all applicable Laws as either “contractorindependent contractors” or “subcontractoremployees” (and individuals classified as defined by Executive Order 11246), (ii) required “independent contractors” are not entitled to comply with Executive Order 11246 or the rights of an employee of the applicable Purchased Entity.
(iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate Without limiting the generality of any Seller and no other Purchased Company or Subsidiary of representation herein, with respect to each Israeli Business Employee employed by a Purchased Company is delinquent Entity (each, an “Israeli Employee”), except as would not, individually or in payments to any Business Employee for any services or amounts required the aggregate, reasonably be expected to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true material and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services adverse to the Business and the Purchased Entities, taken as a whole: (including each outside sales representative)A) all obligations of the applicable Purchased Entity 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 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 are accrued on the applicable Purchased Entity’s financial statements, and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect all Israeli Employees have been subject to Current Business Employees, no Seller, no Affiliate the provisions of any Seller and no other Purchased Company or Subsidiary Section 14 of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint Severance Pay Law with respect to or relating to them pending before their entire salary, as defined under the Equal Employment Opportunity Commission or any other Governmental Severance Pay Law from the date of commencement of their employment with the applicable Purchased Entity, and the applicable Purchased Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other the requirements of a Section 14 Arrangement (as defined under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating Severance Pay Law) with respect to plant closings and layoffs.
(s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any severance pay with respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right full amount of any such individual to be employed by any Seller or any Affiliate of any Seller or salary for which severance pay is due under the Severance Pay Law; (B) no Israeli Employee’s employment by the applicable Purchased Entity requires any special license, permit or other authorization by any Governmental Entity; (C) there are no unwritten policies, practices or customs of the applicable Purchased Entity that entitle any Israeli Employee to material benefits in addition to what such Israeli Employee is entitled to by applicable Laws or under the knowledge terms of such Israeli Employee’s employment Contract (including unwritten customs or use practices concerning bonuses, the payment of trade secrets statutory severance pay even when not required under applicable Law, etc.); and (D) all amounts that the applicable Purchased Entity is legally or proprietary information.
contractually required either (tI) To 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 (II) to withhold from such Israeli Employee’s salary and benefits and to pay to any Israeli Governmental Entity as required by applicable Israeli Tax Law, have, in each case, been duly deducted, transferred, withheld and paid, and the Knowledge of SellersPurchased Entity has no outstanding obligation to make any such deduction, as of transfer, withholding or payment (except for deduction, transfer, withholding and payments to be made in the ordinary course after the date of this AgreementAgreement or after the Closing, no Current Business Employee with an annual salary of $100,000 or above has given or has been givenas applicable, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with for the Business in the next six (6) months.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions contemplated by working month during which this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contractwas executed, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a partythe Closing occurs, as applicable).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (PERRIGO Co PLC)
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a3.14(a) of the Seller Disclosure Schedules sets forth a list of each Benefit Plan and separately identifies as such each Purchased Company material Benefit Plan. Sellers have Seller has made available to Buyer Purchaser correct and complete copies of each such material Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company Benefit Plan, Sellers have made available to Buyer, to the extent applicable, (i) any related trust agreement or other funding instrument; (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS determination letter; and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Each Benefit Plan in from which Business Employees participate rollover contributions are contemplated under Section 5.6 that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification or is in the process of obtaining such a letter andCode, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation of any such determination letters.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required has received a favorable determination or opinion letter as to its qualification and, to the Knowledge of Seller, nothing has occurred that would reasonably be made expected to give rise to a revocation of such determination or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely madeopinion.
(dc) Except as required by applicable Law or as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely made.
(e) Except as set forth on Section 3.15(e3.14(c) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transaction (whether alone or together with any other events) will (i) result in any material payment that is the Liability of (other than any of the Purchased Companies payment for which Seller and its Affiliates are exclusively liable) becoming due to any Business Employee (as defined herein)Employee, (ii) materially increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee (other than any increases for which Seller and its Affiliates are exclusively liable) or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(jd) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o3.14(d) of the Seller Disclosure Schedules is a true and correct list, as of the date hereofof this Agreement, of each Current collective bargaining, works council or other material labor agreement of Seller or any of its Affiliates which covers any portion of the Business and/or to which any Business Employees are subject. Except as set forth on Section 3.14(d) of the Seller Disclosure Schedules, no Business Employee is represented by a labor union, works council or other labor organization with respect, in whole or in part, to the Business. There are not currently, and during the three (3)-year period immediately prior to the date of this Agreement, there have not been, any pending or, to the Knowledge of Seller, threatened strikes, work slowdowns, work stoppages, picketing or lockouts involving Business Employees (with respect, in whole or in part, to the Business). To the Knowledge of Seller, no petition has been filed or proceedings instituted by a Business Employee or group of Business Employees with any labor relations board seeking recognition of a bargaining representative with respect, in whole or in part, to the Business. To the Knowledge of Seller, with respect, in whole or in part, to the Business, there is no organizational effort currently being made or threatened by, or on behalf of, any labor union, works council or other labor organization to organize any Business Employees and no demand for recognition of any Business Employee has been made by, or on behalf of, any labor union, works council or other labor organization. There are no material unfair labor practice complaints pending against Seller or any of its Subsidiaries in respect of any Business Employee and/or the Business before the National Labor Relations Board or any other labor relations tribunal or authority. For purposes of this Section 3.14(d), the defined term “Business Employee” shall include any former employee of Seller or any of its Affiliates who was actively and primarily employed in the Business.
(e) Seller has made available to Purchaser a true and correct list of each current Business Employee and, and for each Current such Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire datefirst date of service (with the Seller, any of its Affiliates or a predecessor employer), (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (viv) active or inactive visa status, (viivi) base salary or base wage rate and (viiivii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable requestpotential or other bonus or incentive entitlements.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(qf) With respect to Current Business EmployeesEmployees and independent contractors who provide services to the Business, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary each of a Purchased Company has received within its Affiliates is, and for the last two past three (23) years any written (i) notice has been, in material compliance with all applicable Laws respecting employment and employment practices, terms and conditions of employment, including but not limited to wages and hours and the classification of employees and independent contractors, and has not been and is not engaged in any unfair labor practice charge or complaint pending before as defined in the National Labor Relations Board Act or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) Law. To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of SellersSeller, as of the date of this Agreement, no Current current Business Employee with who is an annual salary of $100,000 executive or above key employee has given or has been given, notice of termination of employment or otherwise provided written notice of an intention disclosed plans to terminate his or her employment with the Business in the next six twelve (612) months. For purposes of this Section 3.14(f), the defined term “Business Employee” shall include any former employee of Seller or any of its Affiliates who was actively and primarily employed in the Business.
(ug) Each SellerNeither Seller nor any of its Affiliates has, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect during the two (2)-year period prior to the transactions contemplated by this Agreement date hereof, taken any action affecting Business Employees that would constitute a “mass layoff” or “plant closing” within the meaning of the Worker Adjustment Retraining and Notification Act (the “WARN Act”) or would otherwise trigger notice requirements or Liability under any Collective Bargaining Agreement.
(v) The execution similar foreign, state or local Law. For purposes of this Agreement and Section 3.14(g), the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.defined
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Labor Relations; Employees and Employee Benefit Plans. (a) Transferor has made available to Transferee a complete and accurate census that sets forth each Platform Employee as of a date that is not more than three (3) Business Days prior to the date hereof and, in each case, to the extent permitted by applicable Law, (i) name or employee identification number; (ii) job title; (iii) employing entity; (iv) work location; (v) current annual salary or hourly wage rate, as applicable; (vi) exempt or non-exempt status; (vii) commission, bonus or other cash incentive-based compensation opportunity; (viii) active or leave status; and (ix) visa status (if applicable). The Platform Employees are sufficient in number to operate in all material respects the Transferred Assets and the Mortgage Servicing Platform in substantially the same manner as conducted by the Transferring Entities and their Affiliates prior to the Closing. Each Platform Employee primarily or exclusively devotes his or her working time to performing services to or on behalf of the Transferred Assets and the Mortgage Servicing Platform, and the Transferring Entities and their Affiliates do not employ any individuals who primarily devote their time to performing services on behalf of the Transferred Assets and the Mortgage Servicing Platform who are not listed on Section 3.15(a3.9(a) of the Seller Transferor Disclosure Schedule.
(b) Section 3.9(b)(i) of the Transferor Disclosure Schedules sets forth a list of each material Employee Benefit Plan and Section 3.9(b)(ii) of the Transferor Disclosure Schedules separately identifies as such each Purchased Company Transferred Benefit Plan. Sellers have Transferor has made available to Buyer correct and complete the Transferee copies of each material Employee Benefit Plan and of each Transferred Benefit Plan (or, to the extent that no such copy exists, an accurate a written description thereof). In addition, with respect to each Purchased Company Transferred Benefit Plan, Sellers have Transferor has made available to Buyerthe Transferee, to the extent applicable, (i) any related trust agreement or other funding instrument; , (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS determination letter; and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports, and (iii) all other material documents pursuant to which such Transferred Benefit Plan has been established, maintained, funded or administered.
(bi) Each Transferred Benefit Plan and with respect to the Platform Employees each Employee Benefit Plan has been established, maintained, funded, and operated in which Business compliance with its terms and applicable Law in all material respects, (ii) all contributions, reimbursements, and distributions required to be made by applicable Law or by the terms of a Transferred Benefit Plan or with respect to the Platform Employees participate any Employee Benefit Plan have been timely made or properly accrued and (iii) each Employee Benefit Plan that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination letter from the IRS Internal Revenue Service as to its qualification or is in the process of obtaining such a letter and, qualification. With respect to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation of any such determination letters.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a each Transferred Benefit Plan, whether by Law there have been no breaches of fiduciary duty (as determined under ERISA) or by the terms prohibited transactions (as defined in Section 406 of ERISA or Section 4975 of the Code) and there are no pending or threatened claims or Legal Proceedings (other than routine claims for benefits). No Transferred Benefit Plan would subject the Transferee to any Liability under Section 4980B, 4980D, 4980H, 6721 or any agreement relating thereto, have been timely made6722 of the Code.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no No Transferred Benefit Plan is subject to Title IV of ERISAERISA or Section 412 of the Code or provides post-employment health or welfare benefits to any Platform Employee other than as required by Section 4980B of the Code or any similar state or foreign law for which the recipient pays the full cost of coverage, is a Multiemployer Plan and neither Transferor nor any of its ERISA Affiliates contributes to or is required to contribute to or has any Liability with respect to a “multiple employer welfare arrangementmultiemployer plan” within the meaning of Section 3(403(37) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made 4001(a)(3) of ERISA with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely madePlatform Employees.
(e) Except Each Employee Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as set forth on defined under Section 3.15(e409A(d)(1) of the Seller Disclosure SchedulesCode) subject to Section 409A of the Code has been operated and administered with respect to Platform Employees who are U.S. taxpayers in all material respects in operational compliance with, neither and is in all material respects in documentary compliance with, Section 409A of the Code.
(f) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether hereby could reasonably be expected to, either alone or together in combination with any other events) will event (including a termination of employment): (i) result in entitle any payment that is the Liability of any of the Purchased Companies becoming due Platform Employee to any Business Employee (as defined herein), increase in severance pay upon a termination of employment or service relationship after the date of this Agreement; or (ii) increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any such benefits. No Purchased Company or Subsidiary other material obligation pursuant to, any of a Purchased Company is a party the Employee Benefit Plans, in each case, with respect to any planPlatform Employees.
(g) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby could, program, policy, agreement or arrangement that could result, separately either alone or in the aggregatecombination with any other event (including a termination of employment) result in any payments or benefits that, individually or in combination with any other payment or benefit, could constitute the payment of any “excess parachute paymentspayment” within the meaning of Section 280G of the Code by reason or in the imposition of an excise Tax under Section 4999 of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiaryCode.
(h) Each Purchased Company Benefit Plan has been maintained There is no contract, agreement, plan or arrangement to the extent applicable in material compliance with Section which Transferor or any of its Affiliates is bound to provide a gross-up or otherwise reimburse any Platform Employee for excise taxes paid pursuant to Sections 409A and Section 457A or 4999 of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (iExcept as set forth on Section 3.9(i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit PlanTransferor Disclosure Schedules, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations Transferring Entities and their Affiliates (with respect to all current the Transferred Assets, the Mortgage Servicing Platform, and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to Platform Employees) are neither party to, nor bound by, any collective bargaining agreement or in respect of such International Benefit Plan other Contract with any labor union, labor organization, works council or employee representative (each, a “CBA”) or bargaining relationship with any labor union, labor organization, works council or employee representative and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Platform Employees are represented by any labor organization, union, works council or similar representative body other labor organization with respect to their employment with Sellers the Transferring Entities or any of their Affiliates. With respect to the Business or the Business EmployeesSince January 1, within the last two (2) years2019, there have been no actual, or to the Knowledge of SellersTransferor, threatened unfair labor practice charges, material arbitrations, Proceedings, grievances, labor disputesarbitrations, strikes, lockouts, slowdowns work stoppages, slowdowns, picketing, handbilling, or work stoppages other material labor disputes against or affecting any Seller or any Affiliate of any Seller.
the Transferring Entities and their Affiliates (k) With with respect to the Purchased Companies or Transferred Assets, the Current Business Mortgage Servicing Platform, and Platform Employees). To the Knowledge of Transferor, since January 1, 2019, there have been no labor organizing activities with respect to any Platform Employees. Since January 1, 2019, no labor organization, union, works council, other labor organization, employee representative or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company Platform Employees has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller .
(j) The Transferring Entities and no Affiliate of any Seller has any Knowledge of any labor union organizing activities their Affiliates (with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees Transferred Assets, the Mortgage Servicing Platform, and current and former employees and independent contractors who provide have provided services to the Business (including outside sales representatives)Transferred Assets and the Mortgage Servicing Platform) are, each Sellerand since January 1, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and 2019 have been been, in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, including all laws Laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hourshours (including the classification of independent contractors and exempt and non-exempt employees), child laborimmigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), immigrationharassment, employment discriminationdiscrimination and retaliation, disability rights or benefits, equal opportunity, plant closures and layoffslayoffs (including the Worker Adjustment and Retraining Notification Act of 1988, affirmative actionas amended, or any similar Laws (“WARN”)), workers’ compensation, labor relations, employee leave issues issues, employee trainings and notices, affirmative action, COVID-19, and unemployment insurance.
(mk) With respect to Except as would not result in material Liability for the Business Transferee, the Mortgage Servicing Platform or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: the Transferred Assets (i) a “contractor” each of the Transferring Entities and their Affiliates has fully and timely paid all wages, salaries, overtime, wage premiums, commissions, overtime, bonuses, severance and termination payments, fees, and other compensation that has come due and payable to their current or “subcontractor” (as defined by Executive Order 11246)former employees and independent contractors who have provided services to the Transferred Assets and the Mortgage Servicing Platform under applicable Laws, Contracts or company policies; and (ii) required to comply with Executive Order 11246 each individual who is providing or within the past three (iii3) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides years has provided services to the Business Transferred Assets and the Mortgage Servicing Platform and is or was classified or treated as an (including each outside sales representative)A) independent contractor, and each such individual’s (i) name and functionconsultant, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigrationleased employee, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progressother non-employee service provider, or (vB) notice of any complaintexempt employee, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Sellereach case, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in properly classified and treated as such for all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffsapplicable purposes.
(sl) To the Knowledge of SellersTransferor, since January 1, 2019, no Business Platform Employee or independent contractor is in any respect in violation has been accused of any material term of any employment Contract, Restrictive Covenant sexual harassment or other obligation: (i) to any Seller harassment, sexual misconduct, or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her discrimination during their employment with the Business in the next six (6) monthsTransferred Entities or their Affiliates.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 1 contract
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Schedules sets forth a list of each material Benefit Plan and separately identifies as such each material Purchased Company Benefit Plan and material Purchased Entity Benefit Plan. Sellers have Seller has made available to Buyer Purchaser correct and complete copies of each such material Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof)) and, to the extent applicable, the currently effective summary plan description required under ERISA. In addition, with respect to each Purchased Company Entity Benefit Plan, Sellers have Seller has made available to BuyerPurchaser, to the extent applicable, (i) any related trust agreement or other funding instrument; (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS Internal Revenue Service determination letter, if applicable; and (iviii) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements statements, and (C) actuarial valuation reports.
(b) Each Purchased Company Benefit Plan in which Business Employees participate that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS United States Internal Revenue Service as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of SellersSeller, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could would reasonably be expected to result in the give rise to a revocation of any such determination lettersor opinion.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All material contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Purchased Company Benefit Plan, whether by Law or by the terms of the Purchased Company Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Purchased Company Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could would reasonably be expected to result in Buyer Purchaser or any of its Affiliates incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely made.
(e) Except as required by applicable Law or as set forth on Section 3.15(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other events) will (i) result in any payment that is the Liability of any of the Purchased Companies Business becoming due to any Business Employee (as defined herein)Employee, (ii) increase any benefits otherwise payable by any of the Purchased Companies Business to or in respect of any Business Employee (other than any increases for which Seller and its Affiliates (other than the Purchased Companies) are exclusively liable) or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company Consolidated Venture, Purchased Entity or Subsidiary of a Purchased Company Consolidated Venture or Purchased Entity is a party to any plan, program, policy, agreement or arrangement that could would reasonably be expected to result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of SellersSeller, threatened material claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (in each case, other than routine claims for benefits).
(g) No Purchased Company Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan that is a Purchased Company Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the such International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded such International Benefit Plan, the liability of each insurer for any such International Benefit Plan funded through insurance or the book reserve established for any such International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligationsPlan; and (iii) each such International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list list, as of the date of this Agreement, of each Collective Bargaining Agreement applicable to collective bargaining or other labor-related agreement or arrangement with any labor union, labor organization, works council or other body representing Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect During the two (2)-year period immediately prior to the Business or the Business Employees, within the last two (2) yearsdate of this Agreement, there have been no actual, or to the Knowledge of SellersSeller, threatened material arbitrations, Proceedings, grievances, labor disputes, strikeswork stoppages, lockoutsstrikes or lockouts involving Current Business Employees, slowdowns except for such labor disputes, work stoppages, strikes or work stoppages against lockouts the existence of which would not reasonably be expected to be, individually or affecting any Seller or any Affiliate of any Sellerin the aggregate, material to the Business.
(k) With respect to To the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group Knowledge of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business Business, (i) there is no organizational effort currently being made or threatened by, or on behalf of, any labor union, works council or other labor organization to organize any Current Business EmployeesEmployees and (ii) no demand for recognition of any Current Business Employee has been made by, or on behalf of, any labor union, works council or other labor organization.
(l) With Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business, with respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives)Business, each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are its Affiliates is, and have been for the past two (2) years has been, in compliance in all material respects with all applicable Laws respecting employment and employment practices, including including, without limitation, all laws Laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, equal pay, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect Seller has provided to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is Purchaser a true and correct list, as of the date hereof, list of each Person who would be a Current Business EmployeeEmployee assuming the Closing had occurred on November 19, 2013, and for each such Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (viv) active or inactive status, (viivi) base salary or base wage rate and (viiivii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(pn) Set forth on Section 3.15(p) of Except as would not reasonably be expected to be, individually or in the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services aggregate, material to the Business (including each outside sales representative)Business, and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With with respect to Current Business Employees, no Seller, no Affiliate of any the Seller and no other Purchased Company or Subsidiary each of a Purchased Company has its Affiliates have not received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending or threatened before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreementcollective bargaining agreement, (iii) notice of any charge charge, complaint or complaint investigation with respect to or relating to them pending by or before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, or (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding other proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or of such entities, any applicant for employment or engagement or any classes of the foregoingforegoing alleging breach of any applicable law governing employment or the termination thereof.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(so) To the Knowledge of SellersSeller, as of the date of this Agreement, no Business Employee at the level of Grades 181-185 or independent contractor Grades 610 and above is in any material respect in violation of any material term of any employment Contractagreement, Restrictive Covenant nondisclosure agreement, non-competition agreement, restrictive covenant or other obligation: (i) other, similar obligation with or to any Seller or any Affiliate of its Affiliates. To the Knowledge of Seller, as of the date of this Agreement, neither Seller nor any of its Affiliates has received notice that any Business Employee at the level of Grades 181-185 or Grades 610 and above is in any material respect in violation of any Seller of the aforementioned agreements with or (ii) similar obligations to a former employer of any such individual employee relating (A) to the right of any such individual employee to be employed by any the Seller or any Affiliate of any Seller its Affiliates or (B) to the knowledge or use of trade secrets or proprietary information.
(tp) To the Knowledge of Sellersthe Seller, as of the date of this Agreement, no Current Business Employee with an annual salary at the level of $100,000 Grades 181–185 or Grades 610 and above has given or has been given, notice of termination of employment with Seller or otherwise provided written notice any of an intention to terminate his or her employment with the Business in the next six (6) monthsits Affiliates.
(uq) Each SellerNeither Seller nor any of its Affiliates has, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect during the two (2)-year period immediately prior to the transactions contemplated by this Agreement date hereof, taken any action affecting Business Employees that would constitute a “mass layoff” or “plant closing” within the meaning of the Worker Adjustment Retraining and Notification Act or would otherwise trigger notice requirements or Liability under any Collective Bargaining Agreementsimilar foreign, state or local Law.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 1 contract
Samples: Purchase Agreement (Visteon Corp)
Labor Relations; Employees and Employee Benefit Plans. (a) On the date hereof, Seller has delivered to Purchaser a true and complete anonymized list of each Business Employee as of the date hereof setting forth each such Business Employee’s (i) title/position, (ii) principal place of employment, (iii) status (active or on leave; full-time or part-time), (iv) hire date (and service crediting date, if different), (v) accrued vacation and/or paid time off, (vi) annual base salary or base wage rate, (vii) target cash incentive compensation opportunity, (viii) union status and (ix) for Business Employees located in the United States, exempt and non-exempt classification, and (x) to the extent not previously provided, any other information required under the ARD. No later than five (5) Business Days prior to the anticipated Closing Date, Seller shall deliver a revised version of the Business Employee list which is updated as of the date of delivery and includes the name of each Business Employee and any updates to the extent in compliance with Section 3.15(a5.2.
(b) Section 3.13(b) of the Seller Disclosure Schedules sets forth a list of all Assumed Benefit Plans and each other material Benefit Plan. With respect to each such Assumed Benefit Plan and separately identifies as such each Purchased Company material Benefit Plan. Sellers have , as the case may be, Seller has made available to Buyer correct Purchaser such documents and complete copies of each Benefit Plan (or, information requested by Purchaser that is reasonably necessary for Purchaser to the extent that no such copy exists, an accurate written description thereof)fulfill its obligations under Section 5.7. In addition, with respect to each Purchased Company Assumed Benefit Plan, Sellers have Seller has made available to BuyerPurchaser, to the extent as applicable, the summary plan description (or a written summary if there is no summary plan description),a copy of the most recent determination or opinion letter issued by the IRS, all documents and records pursuant to which such Assumed Benefit Plan is maintained, administered and funded (including, without limitation, the plan documents, funding vehicles, participant and financial records, filings and material correspondence with Governmental Entities, and service provider agreements). The defined contribution UK Pension Scheme set forth on Section 3.13(b) of the Seller Disclosure Schedules is the only arrangement under which the Seller or any Seller Entity has or may have any obligation to provide or contribute towards pension, lump-sum, death, ill-health, disability or accident benefits in respect of any Business Employee in the United Kingdom.
(c) Except as set forth on Section 3.13(c) of the Seller Disclosure Schedules, no Benefit Plan is (i) any related trust agreement or other funding instrument; a defined benefit plan (as defined in Section 3(35) of ERISA), (ii) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 or 430 of the currently effective summary plan description required under ERISACode, (iii) a “multiple employer plan” (within the most recent IRS determination letter; meaning of Section 413(c) of the Code, and (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA,. There are no accrued benefits, commitments, or financial liabilities with respect to any employee benefit plan of the most recent types described in (Ai) Form 5500 and attached schedulesthrough (iv) above, or with respect to any Multiemployer Plan or any defined benefit pension plan or plan providing post-employment health, life or other welfare benefits in a jurisdiction outside the United States, that shall transfer to, or otherwise become a liability of, Purchaser as a result of the consummation of the transactions contemplated by this Agreement, whether pursuant to an active, frozen, partially frozen, discontinued, or terminated plan of any Seller Entity or its Affiliates. Neither Seller nor any of its ERISA Affiliates contributes to, has an obligation to contribute to or otherwise has any liability (Bactual or contingent) audited financial statements and (C) actuarial valuation reportswith respect to any Assumed Benefit Plan that is a Multiemployer Plan for the benefit of any Business Employee.
(bd) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” tax-qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of Sellers, and no event has occurred since the issuance of the determination letters referred to in this clause (b) circumstances exist that could reasonably be expected to result in the revocation of any such determination letters.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required letter or to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy adversely affect such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely madeplan’s tax-qualified status.
(e) Except as required by applicable Law, as expressly contemplated by this Agreement or as set forth on Section 3.15(e3.13(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transaction (whether alone or together with any other events) will (i) result in any material payment that is the Liability of any of the Purchased Companies becoming due to any Business Employee (as defined herein)Employee, (ii) materially increase any benefits otherwise payable by any of the Purchased Companies Business to or in respect of any Business Employee Employee, or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company material payments or Subsidiary of a Purchased Company is a party benefits due to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the TransactionBusiness Employee.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p3.13(f) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate collective bargaining or works council or other labor agreement of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against themof its Affiliates to which any Business Employees are subject (each, (ii) notice of any complaints, grievances or arbitrations arising out of any a “Collective Bargaining Agreement”), (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages which list is true and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, complete as of the date of this Agreement. During the two (2)-year period immediately prior to the date of this Agreement, there have been no Current (i) strikes, lockouts, work stoppages, slowdowns, picketing or other material concerted action or labor dispute, or (ii) organizational efforts or demands for recognition, in each case, involving Business Employee with an annual salary Employees and except for such strikes or lockouts the existence of $100,000 which would not reasonably be expected to have, individually or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) monthsaggregate, a Business Material Adverse Effect.
(ug) Each SellerDuring the three (3)-year period immediately prior to the date of this Agreement, each Affiliate of any Seller has been and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with all applicable Laws respecting employment and employment practices in respect of the Business Employees, including but not limited to, terms and conditions of employment, collective bargaining, immigration (including verifying eligibility to work in the applicable jurisdiction), health and safety, wages and hours (including the proper classification of employees and of independent contractors), benefits, harassment, non-discrimination in employment and workers’ compensation, and (ii) there have been no material Proceedings filed against Seller by any requirement to inform current or consult with any labor organization, union, works council or employee representative body former Business Employee with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreementtheir employment.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 1 contract
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a3.18(a) of the Seller Disclosure Schedules sets forth a list of each Benefit Business Plan and separately identifies as such each Purchased Company Benefit Plan. Sellers have Seller has made available to Buyer correct and complete copies of each Benefit Business Plan (or, to the extent that no such copy exists, an accurate written description thereof)) and, to the extent applicable, the currently effective summary plan description required under ERISA. In addition, with respect to each Purchased Company Benefit Plan, Sellers have Seller has made available to Buyer, to the extent applicable, (i) any related trust agreement or other funding instrument; (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS Internal Revenue Service determination letter; and (iviii) the three most recent (A) Form 5500 and attached schedules, (B) audited financial statements and statements, (C) actuarial valuation reportsreports and (D) all correspondence with the Internal Revenue Service, Department of Labor or Pension Benefit Guaranty Corporation regarding any Benefit Plan during the last three (3) years.
(b) Each Benefit Business Plan in which Business Employees participate that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS United States Internal Revenue Service as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of SellersSeller, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation disqualification of any such determination lettersBusiness Plan.
(c) Each Purchased Company Benefit Business Plan has been operated in compliance in all material compliance respects with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of a Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Business Plan or any agreement relating thereto, have been timely made, and any delinquent employee contributions to such Business Plan have been fully corrected according to applicable procedures established by the Internal Revenue Service and Department of Labor.
(d) Except as set forth on Section 3.15(d3.18(d) of the Seller Disclosure Schedules, no Benefit Business Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any the Purchased Company or any Subsidiary of a the Purchased Company or any of their respective ERISA Affiliates that has not been satisfied in full when due, and no condition exists that could reasonably be expected presents a risk to result in Buyer of incurring a Liability under Title IV of ERISA by reason of any Benefit Plan. No Benefit Business Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Business Plan or otherwise) have been timely made. No “reportable event” within the meaning of Section 4043 of ERISA has occurred by reason of the execution of this Agreement or will occur by reason of the transactions contemplated by this Agreement.
(e) Except as set forth on Section 3.15(e3.18(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other events) will will: (i) result in any payment that is the Liability of any of the Purchased Companies Business becoming due to any Business Employee (as defined herein), or Service Provider; (ii) increase any benefits otherwise payable by any of the Purchased Companies Business to or in respect of any Business Employee or Service Provider; or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Neither the Purchased Company or nor any Subsidiary of a the Purchased Company is a party to to, or could be liable for any payment under, any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of SellersSeller, threatened claims by or on behalf of any Purchased Company Benefit Business Plan, by any employee or beneficiary covered under any Purchased Company Benefit Business Plan in their capacity as such or otherwise involving any Purchased Company Benefit Business Plan (other than routine claims for benefits).
(g) No Benefit Business Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Neither Buyer nor the Purchased Company Benefit Plan has been maintained will incur any liability for noncompliance with respect to the extent applicable in material compliance with Section 409A and Section 457A of the Code. .
(i) Schedule 3.18(i) sets forth (i) a description of the method(s) used by Seller in the current calendar year in determining whether each Current Business Employee is a “full-time employee” (as defined in Section 4980H of the Code), and (ii) Seller’s estimated potential penalties (if any) pursuant to Section 4980H(a) and or 4980H(b) of the Code with respect to any month in the current calendar year.
(j) No Purchased Company Benefit Plan is an International Benefit Plan. No Business Employee is an International Business Employee.
(ik) With respect to each International Benefit Plan: (i) all employer and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(j) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees or Service Providers are represented by any a labor organization, union, labor organization or works council or similar representative body with respect to their employment or engagement with Sellers Seller or any of their its Affiliates. With respect During the two (2)-year period immediately prior to the Business or the Business Employees, within the last two (2) yearsdate of this Agreement, there have been no actual, or to the Knowledge of SellersSeller, threatened material arbitrations, grievances, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(kl) With respect to the Purchased Companies or the Current Business EmployeesNo labor union, no labor organization, union, works council, council or group of employees of any Seller, Seller or any Affiliate of any Seller or any other (including the Purchased Company or a Subsidiary of a the Purchased Company Company) has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Neither Seller and no nor any Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(lm) With respect to Business Employees and independent contractors Service Providers who provide services to the Business (including outside sales representatives)Business, each to the Knowledge of Seller, Seller and each Affiliate of any Seller and each other (including the Purchased Company or a Subsidiary of a the Purchased Company Company) are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(mn) With respect to the Business or Current Business Employees, no Seller, no Neither Seller nor any Affiliate of any Seller and no other (including the Purchased Company or a Subsidiary of a the Purchased Company Company) is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(no) No To the Knowledge of Seller, no neither Seller nor any Affiliate of any Seller and no other (including the Purchased Company or a Subsidiary of a the Purchased Company Company) is delinquent in payments to any Business Employee Employees or Service Providers for any services or amounts required to be reimbursed or otherwise paid.
(op) Set forth on Section 3.15(o3.18(p) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, list of each Current Business EmployeeEmployee and Service Provider, and for each Current Business Employee such Current Business Employee’s person, such person’s: (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) accrued paid time off, (vi) status as exempt or non-exempt (if a Current U.S. Business Employee), (vivii) active or inactive status and his or her expected return to work date, (viii) visa status, (viiix) base salary or base wage rate and rate, (viiix) annual bonus potential. Sellers shall update such list not less than five potential or other bonus or incentive entitlements and (5xi) Business Days prior to the Closing and at Buyer’s reasonable requestKnowledge of Seller, whether such person was previously an employee of Buyer or its Affiliates. No Current Business Employee or Service Provider has a work location outside the United States.
(pq) Set Except as set forth on Section 3.15(p3.18(q) of the Seller Disclosure Schedules is a true Schedules) with respect to Business Employees and correct list Service Providers, neither Seller nor any Affiliate of each independent contractor who provides services to the Business Seller (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other the Purchased Company or a Subsidiary of a the Purchased Company Company) has received within the last two (2) years any written past 24 months: (i) notice of any unfair labor practice charge or complaint pending or threatened before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreementcollective bargaining agreement or any other complaints, grievances or arbitration procedures against them, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, immigration or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding other proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or Service Provider of such entities, any applicant for employment or engagement or any classes of the foregoingforegoing alleging breach of any express or implied contract of employment, any applicable law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
(r) Each Seller, Seller and each Affiliate of any Seller and each other (including the Purchased Company or a Subsidiary of a the Purchased Company Company) is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, no No Business Employee or independent contractor current or former Service Provider is in any respect in violation of any material term of any employment Contractagreement, common law nondisclosure obligation, fiduciary duty, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer or engager of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To Except as set forth in Section 3.18(t) of the Knowledge of SellersSeller Disclosure Schedules, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) months.
(u) Each Sellerhereof, each Affiliate of any Seller and each other the Purchased Company or a Subsidiary of a the Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body with respect to the transactions transaction contemplated by this Agreement or under any Collective Bargaining Agreementcollective bargaining agreement or similar labor Contract or applicable Law.
(vu) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreementcollective bargaining agreement, employment Contractagreement, independent contractor (including any outside sales representative) Contract, consulting agreement or any other material labor-related agreement Contract to which Seller or any Affiliate of Seller (including the Purchased Company or a Subsidiary of a the Purchased Company Company) is a party.
Appears in 1 contract
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a3.14(a) of the Seller Disclosure Schedules sets forth a list list, as of the date of this Agreement, of each Benefit Plan and separately identifies as such each Purchased Company material Benefit Plan. Sellers have Seller has made available to Buyer Purchaser correct and complete copies of each such material Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company Benefit Plan, Sellers have made available to Buyer, to the extent applicable, (i) any related trust agreement or other funding instrument; (ii) the currently effective summary plan description required under ERISA, (iii) the most recent IRS determination letter; and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Each [Reserved].
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, each Benefit Plan in which Business Employees participate that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation of any such determination letters.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely madequalification.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no No Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning . None of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any the Purchased Company or any Subsidiary of a Purchased Company Companies or any of their respective ERISA Affiliates that has not maintained, established, participated in or contributed to, or is or has been satisfied in full when dueobligated to contribute to, and no condition exists that could reasonably be expected to result in Buyer incurring a Liability under Title IV of ERISA by reason of or has otherwise incurred any Benefit Plan. No Benefit Plan subject to obligation or liability (including any contingent liability) under, any Multiemployer Plans within the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements last twelve (determined without regard to any waiver thereof), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise12) have been timely mademonths.
(e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedulesrequired by applicable Law, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transactions (whether alone or together with any other events) will (i) result in any material payment that is the Liability of any liability of the Purchased Companies Business becoming due to any Business Employee (as defined herein)Employee, (ii) materially increase any benefits otherwise payable by any of the Purchased Companies Business to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits in respect of Business Employees beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits under any “pension plan” within the meaning of Section 3(2) of ERISA, or (iii) benefits the full costs of which are borne by the Business Employee or his beneficiary.
(h) Each Purchased Company Benefit Plan has been maintained operated in compliance in all material respects with its terms and applicable Law. Except as would not reasonably be expected to have, individually or in the extent applicable in material compliance with Section 409A aggregate, a Business Material Adverse Effect, all contributions, premiums and Section 457A of the Code. No Purchased Company Benefit Plan is an International Benefit Plan.
(i) With respect expenses required to each International Benefit Plan: (i) all employer and employee contributions required be made by Law or by the terms of the International a Purchased Company Benefit Plan or any agreement relating thereto have been timely made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entities.
(jg) Set forth on Section 3.15(j) of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employees, within the last two (2) years, there have been no actual, or to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Seller.
(k) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o3.14(g) of the Seller Disclosure Schedules is a true and correct list, as of the date hereofof this Agreement, of each Current collective bargaining agreement of Seller or any of its Affiliates to which any Transferred Business EmployeeEmployees are subject. During the two (2)-year period immediately prior to the date of this Agreement, there have been no strikes or lockouts involving Transferred Business Employees, except for such strikes or lockouts the existence of which would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.
(h) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, neither Seller nor any Purchased Company is in violation with respect to any Transferred Business Employee of any Law governing the employment of Transferred Business Employees.
(i) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business as a whole, the Seller is, and for each Current the past two (2) years has been, with respect to the Business and the Transferred Business Employees, in compliance with all applicable federal and state Laws and regulations regarding labor and employment matters, including, but not limited to, fair employment practices, pay equity, restrictive covenants, the classification of independent contractors, workplace safety and health, work authorization and immigration, unemployment, workers’ compensation, affirmative action, terms and conditions of employment, employee accommodations and leaves of absence, expense reimbursements, and wages and hours, including payment of minimum wages and overtime and meal and rest break premiums, as well as payroll taxes and applicable federal and state deductions. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business as a whole, the Seller is not, with respect to the Business and the Transferred Business Employees, delinquent in any payments to any Transferred Business Employee or consultant for any wages, salaries, commissions, bonuses, fees or other direct compensation due with respect to any services performed for it or amounts required to be reimbursed to such Current Transferred Business Employee’s (i) name and job titleEmployees or consultants. Except as would not reasonably be expected to be, (ii) principal work locationindividually or in the aggregate, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior material to the Closing Business as a whole, the Seller is not liable for any payment to any trust or other fund or to any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the ordinary course of business consistent with past practice). Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business as a whole, there are no pending claims against the Seller, with respect to the Business and at Buyer’s reasonable requestthe Transferred Business Employees, either under any workers’ compensation plan or policy or for long-term disability. The Seller has retained all material employment records of Transferred Business Employees in accordance with applicable federal and state Laws.
(pj) Set Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business as a whole, except as set forth on Section 3.15(p3.14(j) of the Seller Disclosure Schedules is a true Schedules:
(i) there are no, and correct list of each independent contractor who provides services during the last two (2) years there have been no actions, lawsuits, claims, investigations, formal or informal grievances, arbitration claims, complaints, administrative charges or other legal proceedings against the Seller, with respect to the Business (including or any Transferred Business Employees, pending, or to the Seller’s Knowledge, threatened to be brought or filed, by or with any judicial, regulatory or administrative forum, under any private dispute resolution procedure or internally in connection with employment or labor matters, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, wage and hour, equal pay or any other employment related matter arising under applicable federal and state Laws, in each outside sales representative)case, and each such individual’s (i) name and function, other than any closed formal or informal grievances.
(ii) principal work location, none of the employment policies or practices of the Seller are as of the date hereof being audited or investigated by any Governmental Entity.
(iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no neither the Seller, no Affiliate nor any of any Seller and no other Purchased Company its officers is, or Subsidiary of a Purchased Company has received within the last two (2) years has been, subject to any written (i) notice of any unfair labor practice charge order, decree, injunction or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of judgment by any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with private settlement contract in respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit labor or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) months.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body matters with respect to the transactions contemplated by this Agreement Business or under any Collective Bargaining AgreementTransferred Business Employees.
(vk) The execution Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business as a whole, the Seller has a complete and accurate copy of this Agreement U.S. Citizenship and Immigration Services Form I-9 for each of the Transferred Business Employees and the consummation of the transactions contemplated by this Agreement will Business is not result in subject to any breach or other violation of affirmative action obligations under any Collective Bargaining AgreementLaw, employment Contractincluding, independent contractor (including any outside sales representative) Contractwithout limitation, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Executive Order 11246, and no Purchased Company is a partygovernment contractor or subcontractor for purposes of any law with respect to the terms and conditions of employment, including, without limitation, the Service Contracts Act or prevailing wage Laws.
(l) During the ninety (90) day period preceding the date hereof, no employee of Seller and its Subsidiaries has suffered an “employment loss” as defined in the WARN Act with respect to the Seller.
(m) Notwithstanding anything in this Agreement to the contrary, this Section 3.14 sets forth the sole and exclusive representations and warranties relating to labor matters.
Appears in 1 contract
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a3.7(a) of the Seller Disclosure Schedules Letter sets forth a list forth, as of the date hereof, each material Benefit Plan and separately identifies as such each Purchased Company Benefit material International Plan. Sellers have With respect to each material Benefit Plan (other than an International Plan), Seller has made available to Buyer Purchaser correct and complete copies of each Benefit Plan (or, to the extent that no such copy exists, an accurate written a description thereofof). In addition, with respect to in each Purchased Company Benefit Plan, Sellers have made available to Buyercase, to the extent applicable, (i) all plan documents, summary plan descriptions, summaries of material modifications, and amendments related to such plans and any related trust agreement or other funding instrument; agreement, (ii) the currently effective summary plan description required under ERISAmost recent Form 5500 Annual Report, (iii) the most recent IRS determination letter; audited financial statement and actuarial valuation, (iv) the most recent (A) Form 5500 all material filings and attached schedules, (B) audited financial statements correspondence with any Governmental Entity and (Cv) actuarial valuation reportsall material related agreements, insurance contracts and other agreements which implement each such Benefit Plan. Seller will make available to Purchaser each item in clauses (i) through (v) of the immediately preceding sentence with respect to a material International Plan within 30 days following the date of this Agreement.
(b) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” within the meaning of Section 401(a) of the Code Except as has received a favorable determination letter from the IRS as to its qualification or is in the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could not had and would not reasonably be expected to result have, individually or in the revocation aggregate, a Business Material Adverse Effect, (i) each Assumed International Plan has been operated and administered in accordance with its terms and in compliance with applicable Law, including ERISA, the Code and, in each case, the regulations thereunder, (ii) all contributions or other amounts payable by Seller or its Subsidiaries pursuant to each Assumed International Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP or applicable international accounting standards, and (iii) as of the date hereof, there are no pending, or to Seller’s Knowledge, threatened or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any such determination lettersAssumed International Plan or any trusts related thereto.
(c) Each Purchased Company Benefit Plan has been operated in material compliance with its terms and applicable Law. All contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the Benefit Plan or any agreement relating thereto, have been timely made.
(d) Except as set forth on Section 3.15(d) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan or is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No liability under Title IV of ERISA has been incurred by any Seller, any Purchased Company Seller or any Subsidiary of a Purchased Company its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full when duefull, and to Seller’s Knowledge no condition exists that could reasonably be expected is likely to result in Buyer incurring a cause Seller or its Subsidiaries or any of their ERISA Affiliates to incur any such liability. Within the last six (6) years, neither Seller nor any of its Subsidiaries has sponsored, maintained or incurred any Liability under with respect to an employee benefit plan subject to Section 302 or Title IV of ERISA by reason or Section 412, 430 or 4971 of the Code. None of Seller, its Subsidiaries or any Benefit Plan. No Benefit of their respective ERISA Affiliates has incurred or is reasonably expected to incur any Controlled Group Liability that has not been satisfied in full.
(d) Neither the Seller, its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the preceding six (6) years, contributed to, been obligated to contribute to or had any liability (including any contingent liability) with respect to any Multiemployer Plan subject to or a plan that has two (2) or more contributing sponsors, at least two (2) of whom are not under “common control” (within the minimum funding requirements meaning of Section 412 4063 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereofERISA), and all contributions required to be made with respect thereto (whether pursuant to the terms of a Benefit Plan or otherwise) have been timely made.
(e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other events) will (i) result in any payment that is the Liability of any of the Purchased Companies becoming due to any Business Employee (as defined herein), (ii) increase any benefits otherwise payable by any of the Purchased Companies to or in respect of any Business Employee or (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code by reason of the Transaction.
(f) There are no pending or, to the Knowledge of Sellers, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefits).
(g) No Benefit Plan provides welfare benefits, including death or medical benefits in (whether or not insured), with respect of to current or former Business Employees beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or comparable U.S. state Law.
(f) Neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in conjunction with any other event) will, except as required by the terms of this Agreement, (i) coverage mandated solely by applicable Lawresult in any payment (including severance and unemployment compensation, forgiveness of indebtedness or otherwise) becoming due to any Business Employee from Seller or its Subsidiaries under any Benefit Plan or otherwise, (ii) death increase any benefits otherwise payable to any Business Employee under any Benefit Plan, (iii) result in any acceleration of the time of payment, funding or vesting of any benefits under any Benefit Plan or (iv) result in any payment (whether in cash or property or the vesting of property) from Seller or its Subsidiaries to any “pension plandisqualified individual” within the meaning of (as such term is defined in Treasury Regulations Section 3(21.280G-1) who is a Transferred Business Employee that would, individually or in combination with any other such payment from Seller or its Subsidiaries, constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of ERISAthe Code).
(g) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, each Assumed International Plan (i) has been operated in conformance with the applicable statutes or governmental regulations and rulings relating to such plans in the jurisdictions in which such Assumed International Plan is present or operates and, to the extent relevant, the United States, (ii) that is intended to qualify for special tax treatment meets all requirements for such treatment and (iii) benefits the full costs of which are borne by the Business Employee or his beneficiarythat is intended to be funded and/or book-reserved is fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
(h) Each Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A 3.7(h) of the Code. No Purchased Company Benefit Seller Disclosure Letter (i) contains a true and complete list of each International Plan is an International Benefit Planthat provides for defined benefit or termination indemnity benefits to Business Employees, and (ii) for which liabilities are recognized in the ordinary course of Seller’s financial reporting practice and, with respect to each such plan, indicates the net balance sheet asset or liability of such plan as of the last day of Seller’s most recently completed fiscal year.
(i) With respect to each International Benefit Plan: (i) all employer the Business Employees and employee contributions required by Law or by the terms of the International Benefit Plan Business Service Providers, Seller and its Subsidiaries are and have been madesince April 3, or, if applicable, accrued, 2015 in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded International Benefit Plan, the liability of each insurer for any International Benefit Plan funded through insurance or the book reserve established for any International Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such International Benefit Plan according to the actuarial assumptions and valuations most recently used to determine required contributions to or in respect of such International Benefit Plan and no transaction contemplated by this Agreement will cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each International Benefit Plan required to be registered with any Governmental Entity has been registered and has been maintained in good standing compliance with all applicable Governmental EntitiesLaws respecting labor, employment, immigration, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety, plant closings, mass layoffs, worker classification, exempt and non-exempt status, compensation and benefits, wages and hours and the Worker Adjustment and Retraining Notification Act of 1988, as amended, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.
(j) Set forth Seller has provided to Purchaser a complete and accurate list of each Business Employee as of the date hereof (such list, as updated from time to time pursuant to Section 5.6(c), the “Service Provider List”), and, with respect to each such individual, the following information, if applicable, to the extent permitted by applicable Law: (i) title or position; (ii) original date of hire or original commencement of service; (iii) whether full-time or part-time, whether hourly or salaried and whether exempt or non-exempt; (iv) if such individual was previously terminated and been rehired or recommenced service, the date of such termination, the date such individual was rehired or recommenced services and any applicable adjusted service date; (v) whether absent from active employment or service; (vi) annual salary or wage rate and, if applicable, target bonus, and other cash incentive compensation and unvested equity compensation; and (vii) any shift differentials or on Section 3.15(jcall pay. As soon as practicable following the date hereof (and in any event within 30 days of the date hereof), Seller shall provide Purchaser with an update to the Service Provider List, which shall be complete and accurate, in order to provide the information described in the immediately preceding sentence with respect to each Business Service Provider (in the case of clause (vi) of the immediately preceding sentence, indicating each Business Service Provider’s annualized consulting payments), and which update shall (A) identify whether each individual on the Service Provider List is an employee of Seller Disclosure Schedules is or one of its Subsidiaries, a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect Service Provider who provides services to the Business through an individual contract or a Business Service Provider who provides services to Business through a third party agency, (B) provide the name of each -42- Business EmployeesEmployee and Business Service Provider, within (C) provide the last two target bonus, and other cash incentive compensation for such Business Employee or Business Service Provider for the prior twelve (212)-month period and such Business Employee’s or Business Service Provider’s equity compensation (including annual grants) yearsfor the prior three (3)-year period, there have been no actual(D) provide each Business Employee’s and Business Service Provider’s accrued unused vacation, sick and other paid-time-off eligibility, (E) if a Business Employee or Business Service Provider is absent from active employment or service, provide the type of absence, provide the date such absence commenced and the anticipated date of return to the Knowledge of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns active employment or active service and (F) provide each Business Employee’s and Business Service Provider’s work stoppages against or affecting any Seller or any Affiliate of any Sellerlocation.
(k) With respect Every Business Employee as of the date hereof has been primarily dedicated to the Purchased Companies or Business since December 31, 2018 (or, for any such Business Employee hired after December 31, 2018, since the Current date of such Business EmployeesEmployee’s hire). Since December 31, 2018, no labor organization, union, works council, or group employee of employees of any Seller, any Affiliate of any Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect its Subsidiaries who was primarily dedicated to the Business has been transferred to any division or any Current Business Employeesbusiness unit of Seller and its Subsidiaries other than the Business.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, including all laws respecting terms and conditions of employment, classification of employees and independent contractors, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With respect to the Business or Current Business Employees, no Sellerneither Seller nor any of its Subsidiaries is a party to, no Affiliate of or bound by, any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and Collective Bargaining Agreement. Except as has not been: been and would not reasonably be expected to be material to the Business, taken as a whole, (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set forth on Section 3.15(o) of neither the Seller Disclosure Schedules nor any of its Subsidiaries is a true and correct list, as of (or has during the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services to the Business (including each outside sales representative), and each such individual’s (i) name and function, (ii) principal work location, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company has received within the last past two (2) years any written (ibeen) notice of any unfair subject to a material labor practice charge dispute, strike or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, work stoppage and (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, there are no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual to be employed by any Seller or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellers, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with the Business in the next six (6) months.
(u) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is in material compliance with any requirement to inform or consult with any labor organization, union, works council or employee representative body organizational efforts with respect to the transactions contemplated by this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary formation of a Purchased Company is a partycollective bargaining unit presently being made or, to the Seller’s Knowledge, threatened involving Business Employees.
Appears in 1 contract
Samples: Asset Purchase Agreement
Labor Relations; Employees and Employee Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Schedules sets forth a true and complete list of each material Benefit Plan and separately identifies as such each material Purchased Company Benefit Plan. Sellers have With respect to each material Benefit Plan, Seller has made available to Buyer correct and complete copies of each Benefit Plan (or, to the extent that no such copy exists, an accurate written description thereof). In addition, with respect to each Purchased Company Benefit Plan, Sellers have made available to BuyerPurchaser, to the extent applicable, (i) correct and complete copy of each such material Benefit Plan document (or, with respect to any material Benefit Plan that is not a Purchased Company Benefit Plan, a written summary of its material terms) and any related trust agreement or other funding instrument, and any amendments thereto; (ii) the currently effective most recent summary plan description required under ERISA, and any summary of material modification thereto; (iii) the most recent IRS Internal Revenue Service determination letter and any pending request for such a letter, if applicable; and (iv) for any Purchased Company Benefit Plan, the most recent (A) annual report or Form 5500 and attached schedulesschedules (if applicable), (B) audited financial statements statements, and (C) actuarial valuation reports, and (v) for any Purchased Company Benefit Plan, any non-routine filings made in respect of such Purchased Company Benefit Plan with any Governmental Entity.
(b) Each Benefit Plan in which Business Employees participate that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification qualification, and to Seller’s Knowledge, there are no facts or is in circumstances that would be reasonably likely to adversely affect the process of obtaining such a letter and, to the Knowledge of Sellers, no event has occurred since the issuance of the determination letters referred to in this clause (b) that could reasonably be expected to result in the revocation qualified status of any such determination lettersBenefit Plan or the exempt status of any related trust.
(c) Each Purchased Company Benefit Plan has been maintained, administered and operated in material compliance with its terms and applicable Law. All With respect to any applicable German Purchased Company Benefit Plans, Seller has complied in all material respects with the statutory duty to review any pension increases according to section 16 German Act on Company Pension Schemes (Gesetz zur Verbesserung der betrieblichen Altersversorgung – BetrAVG).
(d) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Business, all contributions, premiums and expenses required to be made to or paid in respect of Business Employees covered under a Benefit Plan, whether by Law or by the terms of the a Purchased Company Benefit Plan or any agreement relating thereto, thereto have been timely made.
(d) Except as set forth on . Seller and the Purchased Companies and their assets are not, and do not expect to be, in respect of any of the Purchased Companies, subject to any Lien pursuant to Section 3.15(d430(k) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA, is a Multiemployer Plan Code or is a “multiple employer welfare arrangement” within the meaning of Section 3(40Sections 303(k) or 4068 of ERISA. No liability under Title IV of ERISA has been incurred by any SellerIn each case, any Purchased Company or any Subsidiary of a Purchased Company or any of their respective ERISA Affiliates that has except as would not been satisfied in full when due, and no condition exists that could reasonably be expected to result be, individually or in Buyer incurring a Liability under Title IV the aggregate, material to the Business, there are no pending, or to Seller’s Knowledge, threatened, audits, inquiries or investigations by the Internal Revenue Service, Department of ERISA by reason of Labor or any other Governmental Entity involving any Purchased Company Benefit Plan. No Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA or any trust established thereunder has failed to satisfy such requirements (determined without regard to any waiver thereof), and all contributions required no pending, or to be made with respect thereto Seller’s Knowledge, threatened, claims, actions, suits or proceedings involving (whether pursuant to the terms of a i) any Purchased Company Benefit Plan or otherwisethe benefits payable thereunder or (ii) have the provision by any Purchased Group Company of (or failure to provide) any pension, lump sum, death or ill-health benefits in respect of any employee or officer or former employee or officer. With the exception of Liabilities in respect of the Purchased Company Benefit Plans, no Liability on any Purchased Company will be triggered, or has been timely madetriggered and remains unsatisfied, as a result of a Purchased Company’s cessation of participation in, or sponsorship of, any defined benefit occupational pension scheme arrangements for the provision of pension and pension-related benefits in respect of its current or former employees.
(e) Except as set forth on Section 3.15(e) of the Seller Disclosure Schedules, no Benefit Plan is subject to Title IV of ERISA and no Purchased Company Benefit Plan is a defined benefit pension plan. None of Seller, any of the Purchased Companies, or any of their respective ERISA Affiliates has incurred any liability to or on account of, any Benefit Plan pursuant to Title IV of ERISA, during the six (6) years preceding the date of this Agreement, which has not been fully paid.
(f) Except as required by applicable Law or as set forth on Section 3.15(f) of the Seller Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement Transaction (whether alone or together with any other events) will (i) result in any material payment that is the Liability of any liability of the Purchased Companies Business becoming due to any Business Employee (as defined herein)Employee, (ii) materially increase any benefits otherwise payable by any of the Purchased Companies Business to or in respect of any Business Employee or Employee, (iii) result in the acceleration of the time of payment or vesting of any such benefits. No Purchased Company , or Subsidiary of a Purchased Company is a party to any plan, program, policy, agreement or arrangement that could result, separately or (iv) result in the aggregate, in the payment of any “excess parachute paymentspayment” within the meaning of under Section 280G of the Code by reason (or any corresponding provision of the Transaction.
(f) There are no pending orstate, to the Knowledge of Sellerslocal, threatened claims by or on behalf of any Purchased Company Benefit Plan, by any employee or beneficiary covered under any Purchased Company Benefit Plan in their capacity as such or otherwise involving any Purchased Company Benefit Plan (other than routine claims for benefitsforeign tax law).
(g) No Benefit Section 3.15(g) of the Seller Disclosure Schedules contains a list of each Multiemployer Plan provides welfare benefits in to which Seller, any Purchased Company or any of their respective ERISA Affiliates contributes, or is required to contribute, with respect to any Business Employee (the “Business Multiemployer Plans”). Except as set forth on Section 3.15(g) of Business Employees beyond their retirement or other termination of service, other than the Seller Disclosure Schedules:
(i) coverage mandated solely by applicable LawNone of Seller, any Purchased Company, or any of their respective ERISA Affiliates has withdrawn from a Business Multiemployer Plan in a “complete withdrawal” or a “partial withdrawal” as defined in Sections 4203 and 4205 of ERISA, respectively, so as to result in a liability of the Seller or its ERISA Affiliates, which has not been fully paid, and
(ii) death benefits To Seller’s Knowledge, with respect to each Business Multiemployer Plan: (A) no such Business Multiemployer Plan has been, or has given notice to Seller that it will be, terminated or Insolvent under ERISA so as to result, directly or indirectly, in any “pension plan” within the meaning material Liability of Section 3(2) a Seller or its ERISA Affiliates under Title IV of ERISA, or ; and (iiiB) benefits no proceeding has been initiated by any Person (including the full costs of which are borne by the Pension Benefit Guaranty Corporation) to terminate any Business Employee or his beneficiaryMultiemployer Plan.
(h) Each Except with respect to any collective bargaining agreements set forth on Section 3.15(h) of the Seller Disclosure Schedules, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) give rise to any liability under Section 4062(e) of ERISA or trigger the imposition of Withdrawal Liability on a Purchased Company Benefit Plan has been maintained to the extent applicable in material compliance with Section 409A and Section 457A or one of the Code. No Purchased Company Benefit Plan is an International Benefit Planits ERISA Affiliates.
(i) With respect Set forth on Section 3.15(i) of the Seller Disclosure Schedules is a true and correct list and true and complete copies of (or, as applicable (including where no written agreement exists), full details all material facts and matters relating to), as of the date of this Agreement, each and all collective bargaining agreements with any trade union, staff association, European or national or local works council or other body representing all or any of the Business Employees. During the three (3)-year period immediately prior to each International Benefit Plan: the date of this Agreement, there have been no material strikes, work stoppages, work slowdowns or lockouts or other form of industrial action involving any of the Business Employees and, as at the date of this Agreement, no such industrial action is, to the Knowledge of Seller, threatened between (i) all employer the Seller or any of its Affiliates and employee contributions required by Law or by the terms of the International Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) a material number or category of Business Employees, or any trade union, staff association, European or national or local works council or other body representing or seeking to represent any Business Employee, except for such strikes or lockouts or other form of industrial action the existence of which have not and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.
(j) Except as set forth on Section 3.15(j) of the Disclosure Schedule, the fair market value of the assets of each funded International Purchased Company Benefit Plan, the liability of each insurer for any International Purchased Company Benefit Plan funded through insurance or the book reserve established for any International Purchased Company Benefit Plan, together with any accrued contributions, is sufficient at least equal to procure or provide for the value of the accrued benefit obligations obligations, as of the date hereof, with respect to all current and or former participants in such International Benefit Plan according to plan calculated in accordance with the actuarial assumptions and valuations most recently used to determine required contributions the funding level in the most recent ongoing valuation of such Purchased Company Benefit Plan (without prejudice to any other jurisdiction, in the UK such valuation being a valuation undertaken under Part 3 of the Pensions Act 2004).
(k) Except (if applicable) in relation to the Purchased Company Benefit Plans or except as would not reasonably be expected to be, individually or in the aggregate, material to the Business, to the Knowledge of Seller, no facts or circumstances exist as a result of which the UK Pensions Regulator would impose a material sanction on any Purchased Company in respect of such International Benefit Plan any defined benefit occupational pension scheme arrangements for the provision of pension and no transaction contemplated by this Agreement will cause such assets pension-related benefits in respect of its current or insurance obligations to be less than such benefit obligations; and former employees.
(iiil) each International Benefit Plan required to be registered with The Seller Entities are not a party to, or otherwise bound by, any material consent decree with, or citation by, any Governmental Entity has been registered and has been maintained in good standing with all applicable Governmental Entitiesrelating to any of the Business Employees or employment practices affecting the Business Employees.
(jm) Set forth on Section 3.15(j) To Seller’s knowledge, no campaigns are being conducted to solicit authorization cards from or otherwise organize any of the Seller Disclosure Schedules is a true, correct and complete list of each Collective Bargaining Agreement applicable to any Current Business Employees. No Current Business Employees are represented by any labor organization, union, works council or similar representative body with respect to their employment with Sellers or any of their Affiliates. With respect to the Business or the Business Employeesunion, and no such campaigns have been conducted within the last two three (23) years, there have been no actual, or to year period immediately preceding the Knowledge date of Sellers, threatened material arbitrations, Proceedings, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against or affecting any Seller or any Affiliate of any Sellerthis Agreement.
(kn) With respect to the Purchased Companies or the Current Business Employees, no labor organization, union, works council, or group of employees of any Seller, any Affiliate of any The Seller or any other Purchased Company or Subsidiary of a Purchased Company has made a currently pending demand for recognition or certification, and there Entities 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 or any other labor relations tribunal or authority. No Seller and no Affiliate of any Seller has any Knowledge of any labor union organizing activities with respect to the Business or any Current Business Employees.
(l) With respect to Business Employees and independent contractors who provide services to the Business (including outside sales representatives), each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company are and have been in material compliance in all material respects with all applicable Laws respecting employment laws, agreements, contracts, policies, plans, and programs relating to employment, employment practices, including all laws respecting compensation, benefits, hours, terms and conditions of employment, and the termination of employment, including but not limited to any obligations pursuant to the Worker Adjustment and Retraining Notification Act of 1988 (or similar state or local laws) (collectively, the “WARN Act”), the classification of employees as exempt or non-exempt from overtime pay requirements, the provision of meal and independent contractorsrest breaks, health pay for all working time, and safetythe proper classification of individuals as non-employee contractors or consultants, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance.
(m) With in all such cases with respect to the Business or Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is and has not been: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(n) No Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company is delinquent in payments to any Business Employee for any services or amounts required to be reimbursed or otherwise paid.
(o) Set Except as set forth on Section 3.15(o) of the Seller Disclosure Schedules is a true and correct list, as of the date hereof, of each Current Business Employee, and for each Current Business Employee such Current Business Employee’s (i) name and job title, (ii) principal work location, (iii) hire date, (iv) work status (i.e. full-time, part-time, temporary, etc.), (v) status as exempt or non-exempt (if a Current U.S. Business Employee), (vi) active or inactive status, (vii) base salary or base wage rate and (viii) annual bonus potential. Sellers which shall update such list not less than five (5) Business Days prior to the Closing and at Buyer’s reasonable request.
(p) Set set forth on Section 3.15(p) of the Seller Disclosure Schedules is a true and correct list of each independent contractor who provides services such employee that identifies such employee by his or her identification number, title and principal work location), during the six (6) months prior to the Business (including each outside sales representative)date of this Agreement, and each such individual’s there has been no transfer of employment or reallocation of the duties or responsibilities of any employee of Seller or any of its Affiliates (i) name who was either actively and functionprimarily engaged in the Business or primarily dedicated to supporting the Business, (ii) principal work locationin either case, (iii) hire date, and (iv) fee rate.
(q) With respect to Current Business Employees, no Seller, no Affiliate of any Seller and no other Purchased Company or Subsidiary of a Purchased Company that has received within the last two (2) years any written (i) notice of any unfair labor practice charge or complaint pending before the National Labor Relations Board or any other Governmental Entity against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice of any charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health laws to conduct an investigation with respect to or relating to them or notice that resulted in such investigation is in progress, or (v) notice of any complaint, lawsuit or Proceeding pending or threatened in any governmental forum by or on behalf of any Business Employee or current or former independent contractor (including any outside sales representative) or any applicant for employment or engagement or any classes of the foregoing.
(r) Each Seller, each Affiliate of any Seller and each other Purchased Company or Subsidiary of a Purchased Company is and has been in compliance in all material respects with all notice and other requirements under the Worker Adjustment and Retraining Notification Act and any similar foreign, state or local Law relating to plant closings and layoffs.
(s) To the Knowledge of Sellers, no Business Employee or independent contractor is in any respect in violation of any material term of any employment Contract, Restrictive Covenant or other obligation: (i) to any Seller or any Affiliate of any Seller or (ii) to a former employer of any such individual relating (A) to the right of any such individual employee ceasing to be employed by any Seller so actively engaged or any Affiliate of any Seller or (B) to the knowledge or use of trade secrets or proprietary information.
(t) To the Knowledge of Sellersdedicated, as applicable, as of the date of this Agreement, no Current Business Employee with an annual salary of $100,000 ; or above has given or has been given, notice of termination of employment or otherwise provided written notice of an intention to terminate his or her employment with (ii) who was not (A) actively and primarily engaged in the Business or (B) primarily dedicated to supporting the Business, in each case, during the next entirety of such six (6) months.
month period (u) Each Selleror, each Affiliate if lesser, the entire continuous period of any such employee’s employment by Seller and each other Purchased Company or Subsidiary its Affiliates prior to the date of this Agreement) that has resulted in such employee becoming either an employee of a Purchased Company is Entity or so actively engaged or dedicated, in material compliance with any requirement to inform or consult with any labor organizationeach case, union, works council or employee representative body with respect to as of the transactions contemplated by date of this Agreement or under any Collective Bargaining Agreement.
(v) The execution of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any breach or other violation of any Collective Bargaining Agreement, employment Contract, independent contractor (including any outside sales representative) Contract, or any other material labor-related agreement to which any Purchased Company or Subsidiary of a Purchased Company is a party.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cbre Group, Inc.)
