Common use of Employees; Employee Benefits Clause in Contracts

Employees; Employee Benefits. (a) Schedule 2.12(a) sets forth the names of all employees of Seller as of the date of this Agreement (the "Employees") and, with respect to each Employee, such Employee's job title and the date of commencement of employment of such Employee. Seller has accrued on its books and records all obligations for salaries, vacations, benefits and other compensation with respect to its Employees and any of its Former Employees (as defined below), to the extent required by GAAP, including, but not limited to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agents. Seller does not currently offer, and has never offered, retiree health and insurance benefits to Employees and Former Employees, and Seller has no liabilities (contingent or otherwise) with respect thereto. Except as set forth in the Schedule 2.12(a), there are no outstanding loans from Seller to any of its affiliates. Complete and correct copies of all material written agreements with or concerning Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to Buyer, and a list of all such agreements and policies is set forth in the Schedule 2.12(a) Except as set forth in Schedule 2.12(a), none of the Employees has, to the best knowledge of Seller and each Seller Stockholder, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with the transactions contemplated by this Agreement. Except as set forth in the Seller Schedules, since September 30, 1999, Seller has not (i) except in the ordinary course of business and consistent with past practice, increased the salary or other compensation payable or to become payable to or for the benefit of any of the Employees, (ii) provided any of the Employees with any increased security or tenure of employment, (iii) increased the amounts payable to any of the Employees upon the termination of any such person's employment or (iv) adopted, increased, augmented or improved benefits granted to or for the benefit of any of the Employees under any Benefit Plan.

Employees; Employee Benefits. (a) Schedule 2.12(a) 2.12 sets forth the names of all employees of Seller as of the date of this Agreement (the "Seller Employees") and, with respect to each Seller Employee, such Seller Employee's job title and the date of commencement of employment of such Seller Employee. Seller has accrued on its books and records all obligations for salaries, vacations, benefits and other compensation with respect to its Seller Employees and any of its Former Seller Employees (as defined below), to the extent required by GAAP, including, but not limited to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agents. Seller does not currently offer, and has never offered, retiree health and insurance benefits to Seller Employees and Former Seller Employees, and Seller has no does not have any liabilities (contingent or otherwise) with respect thereto. Except as set forth in the Schedule 2.12(a)2.12, there are no outstanding loans from Seller to any of its affiliatesSeller Employee or any other third party. Complete and correct copies of all material written agreements with or concerning Seller Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to Buyer, and a list of all such agreements and policies is set forth in the Schedule 2.12(a) Except as set forth in Schedule 2.12(a), none 2.12. None of the Seller Employees has, to the best knowledge of Seller and each Seller StockholderSeller, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with the transactions contemplated by this Agreement. Except as set forth in the Seller SchedulesSchedule 2.12, since September 30, 1999its formation, Seller has not (i) not, except in the ordinary course of business and consistent with past practice, (i) increased the salary or other compensation payable or to become payable to or for the benefit of any of the Seller Employees, (ii) provided any of the Seller Employees with any increased security or tenure of employment, (iii) increased the amounts payable to any of the Seller Employees upon the termination of any such person's employment or (iv) adopted, increased, augmented or improved benefits granted to or for the benefit of any of the Seller Employees under any Seller Benefit Plan.

Employees; Employee Benefits. (a) Schedule 2.12(aSECTION 4.07(a) of the Disclosure Letter sets forth the names a true, correct and complete list of all employees individuals who are employed by the Company on a full-time, permanent or part time basis principally at or with respect to the Business of Seller the Company as of the date of this Agreement (such individuals, together with any individuals who may be added to such list prior to the "Closing Date in accordance with this SECTION 4.07(a) are collectively referred to herein as the “Company Employees"”). Any employee of the Company who is not actively at work on the Closing Date due to a short-term absence, whether paid or unpaid (e.g., vacation, holiday, jury duty, FMLA, pregnancy, parental and bereavement leave, military leave, scheduled time off, or illness or injury leave) andin compliance with the applicable policies of the Company (or a long-term absence covered under a long-term disability Company Plan) or any employee of the Company who is not actively at work on the Closing Date and is receiving worker’s compensation payments from the Company as required by applicable Law will be deemed a “Company Employee.” SECTION 4.07(a) of the Disclosure Letter will set forth each Company Employee’s name, with respect to each Employeeposition, such Employee's job title hourly wage rate or salary, total compensation (including incentive and similar compensation), and the date vacation time to which each Company Employee is entitled (for purposes of commencement of employment of such EmployeeSECTION 4.07(b)). Seller has accrued on its books and records all obligations for salaries, vacations, benefits and other compensation with respect to its Employees and any of its Former Employees (as defined below), to the extent required by GAAP, including, but not limited to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agents. Seller does not currently offer, and has never offered, retiree health and insurance benefits to Employees and Former Employees, and Seller has no liabilities (contingent or otherwise) with respect thereto. Except as set forth in the Schedule 2.12(a), there are no outstanding loans from Seller to any of its affiliates. Complete and correct copies of all material written agreements with or concerning Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to Buyer, and a Such list of all such agreements and policies is set forth in the Schedule 2.12(a) Except as set forth in Schedule 2.12(a), none of the Employees has, to the best knowledge of Seller and each Seller Stockholder, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with the transactions contemplated by this Agreement. Except as set forth in the Seller Schedules, since September 30, 1999, Seller has not also identifies: (i) except all Company Employees covered by a severance plan, policy or arrangement and the amount such Company Employee may be entitled to under such severance plan, policy or arrangement; and (ii) any Company Employee who is currently on military leave from the Company and whether any such Company Employee is entitled to re-employment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (“USERRA”) or other applicable Laws. Not later than three (3) Business Days prior to the Closing Date, such list shall be updated to reflect any additional individuals who become Company Employees in the ordinary course of business and consistent with past practice, increased the salary or other compensation payable or to become payable to or for the benefit of any conduct of the Employees, (ii) provided any Company’s business after the date of this Agreement and prior to the Employees with any increased security or tenure of employment, (iii) increased the amounts payable to any of the Employees upon the termination of any such person's employment or (iv) adopted, increased, augmented or improved benefits granted to or for the benefit of any of the Employees under any Benefit PlanClosing Date.

Employees; Employee Benefits. (a) Section 4.11(a) of the Company Disclosure Schedule 2.12(a) sets forth as of the names date hereof a complete and correct list of (i) all employees material “employee benefit plans” (as defined in Section 3(3) of ERISA) and (ii) all material bonus, stock option, stock purchase, restricted stock, benefit, incentive compensation, profit sharing, savings, retirement, disability, insurance, vacation, incentive, deferred compensation, supplemental retirement, severance, termination pay, salary continuation, employment, consulting, indemnification, layoff, unemployment, change in control, medical, dental, health, welfare and other similar fringe or employee benefit plans, programs, agreements or arrangements written or otherwise (including any employee communication evidencing any express or implied commitment with respect to any of the foregoing) maintained or contributed to, or under which any of the Company, Seller or their Affiliates could have any direct or indirect Liability, in each case, for the benefit of or relating to any Company Employee, director or consultant of the Company or any Company Subsidiary (whether or not material, the “Employee Plans”), excluding expired or fully performed agreements under which neither the Company nor any Company Subsidiary could have any Liability whatsoever. Section 4.11(a) of the Company Disclosure Schedule separately designates each Employee Plan that is sponsored or maintained by the Company or any Company Subsidiary (whether or not material, the “Company Employee Plans”). Each Employee Plan that is not a Company Employee Plan is hereinafter referred to as a “Seller Employee Plan.” No Employee Plan is maintained outside the jurisdiction of the United States or covers any Company Employees or other service providers of the Company or any Company Subsidiary who reside or work outside of the United States. -34- (b) In respect of each Company Employee Plan set forth on Section 4.11(a) of the Company Disclosure Schedule, the Company has made available to Buyer (i) the most recent annual report on Form 5500 filed with the Internal Revenue Service for any Company Employee Plan where such report is required and (ii) a true and complete copy of the plan documents (including all amendments) and trust agreements or other funding arrangements, if any, governing such Employee Plan (other than those referred to in Section 4(b)(4) of ERISA) (or, if the Employee Plan is not written, a written description thereof). Neither the Company nor any Company Subsidiary has any express or implied commitment to modify, change or terminate any Employee Plan, other than with respect to a modification, change or termination required by Law. (c) All Company Employee Plans have been established, operated and administered in all material respects in compliance with their terms and applicable Law, including ERISA and the Code. There are no Actions or Proceedings pending or, to the Knowledge of the Company, threatened in writing against any Employee Plan which would reasonably be expected to result, in the aggregate, in any material Liability to the Company or any of the Subsidiaries and, to the Knowledge of the Company, no fact or event exists that would give rise to any such Action or Proceeding. (d) None of the Employee Plans is (i) subject to Title IV of ERISA, (ii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA (a “Multiemployer Plan”) or (iii) a single employer pension plan within the meaning of Section 4001(a)(15) of ERISA for which the Company or any Company Subsidiary could incur Liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). None of the Company, any Company Subsidiary, nor any of their respective ERISA Affiliates has ever during the six-year period ending on the Closing Date maintained, sponsored, contributed to, or incurred any Liability or obligation with respect to any employee benefit plan subject to Title IV of ERISA or Section 412 of the Code. None of the Company, any Company Subsidiary, nor any of their respective ERISA Affiliates has incurred any Liability under, arising out of or by operation of Title IV of ERISA, other than Liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course of business, including any Liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan or Multiple Employer Plan, and no fact or event exists that would give rise to any such Liability. (e) To the Knowledge of the Company, with respect to any Employee Plan, there has not occurred any non-exempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA which could result in a material Liability to the Company or any Company Subsidiary. Each Employee Plan intended to qualify under Section 401(a) of the Code has timely received a favorable determination or opinion letter from the Internal Revenue Service to such effect. To the Knowledge of the Company, no fact or event has occurred since the date of such determination or opinion letter or letters from the IRS that could adversely affect the qualified status of any such Employee Plan. (f) All contributions, premiums or payments required to be made with respect to any Company Employee Plan have been made on or before their due dates. No insurance policy or any other Contract affecting any Company Employee Plan requires or permits a retroactive -35- increase in premiums or payments due thereunder. In accordance with applicable law, each Company Employee Plan (other than any Company Employee Plan that is an employment, severance, or similar agreement with a specified individual) can be amended or terminated by the Company at any time, without consent from any other person and without material liability other than for benefits accrued as of the date of this Agreement such amendment or termination (the "Employees") and, with respect to each Employee, such Employee's job title and the date of commencement of employment other than administrative expenses incurred as a result of such Employeetermination) or liabilities that arise under applicable Law. Seller has accrued on its books (g) No Company Employee Plan provides for post-retirement medical or other post-retirement welfare benefits (excluding severance pay and records all obligations for salaries, vacations, benefits and other compensation with respect to its Employees and any of its Former Employees (as defined belowbenefits), other than the medical benefits required to be provided under Part 6 of Subtitle B of Title I of ERISA or any similar law (“COBRA”), and none of the Company nor any Company Subsidiary has any obligation or Liability to provide any such benefits except to the extent expressly required by GAAP, including, but not limited to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agentsCOBRA or any similar local law. Seller does not currently offer, and has never offered, retiree health and insurance benefits to Employees and Former Employees, and Seller has no liabilities (contingent or otherwise) with respect thereto. Except as set forth in the Schedule 2.12(a), there are no outstanding loans from Seller to any of its affiliates. Complete and correct copies of all material written agreements with or concerning Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to Buyer, and a list of all such agreements and policies is set forth in the Schedule 2.12(ah) Except as set forth in Schedule 2.12(a), none Section 4.11(h) of the Employees hasCompany Disclosure Schedule, to neither the best knowledge execution and delivery of Seller and each Seller Stockholder, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with this Agreement nor the consummation of the transactions contemplated by this Agreement. Except as set forth Agreement (either alone or in the Seller Schedules, since September 30, 1999, Seller has not combination with any other event) will (i) except in the ordinary course of business and consistent with past practice, increased the salary entitle any Company Employee or other compensation payable current or to become payable to former director or for the benefit of any consultant of the EmployeesCompany or any Company Subsidiary to severance pay or any material increase in severance pay, (ii) provided accelerate the time of payment or vesting, or materially increase the amount of compensation due to any of the Employees with any increased security such Company Employee or tenure of employmentdirector or consultant, (iii) increased directly or indirectly cause the amounts payable Company or any Company Subsidiary to transfer or set aside any of the Employees upon the termination of assets to fund any such person's employment or material benefits under any Employee Plan, (iv) adoptedincrease any benefits otherwise payable by the Company or any Company Subsidiary under any Employee Plan or otherwise give rise to any material Liability pursuant to any Employee Plan, increased(v) limit or restrict the right to merge, augmented materially amend, terminate or improved benefits granted to or for transfer the benefit assets of any Employee Plan on or following the Closing or (vi) result in any forgiveness of indebtedness to any Company Employee or current or former director or consultant of the Employees under Company or any Benefit PlanCompany Subsidiary. (i) Neither the Company nor any Company Subsidiary has any obligation to provide (whether pursuant to an Employee Plan or otherwise) a “gross-up”, indemnity payment or otherwise to compensate any individual with respect to the additional taxes or interest pursuant to Section 280G of the Code or Section 4999 of the Code. (j) Each Employee Plan that is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder. Neither the Company nor any Company Subsidiary has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code. SECTION 4.12.

Employees; Employee Benefits. (a) Section 4.11(a) of the Company Disclosure Schedule 2.12(a) sets forth the names of all employees of Seller as of the date hereof a complete and correct list of this Agreement (the "Employees"i) andall material “employee benefit plans” (as defined in Section 3(3) of ERISA) and (ii) all material bonus, stock option, stock purchase, restricted stock, benefit, incentive compensation, profit sharing, savings, retirement, disability, insurance, vacation, incentive, deferred compensation, supplemental retirement, severance, termination pay, salary continuation, employment, consulting, indemnification, layoff, unemployment, change in control, medical, dental, health, welfare and other similar fringe or employee benefit plans, programs, agreements or arrangements written or otherwise (including any employee communication evidencing any express or implied commitment with respect to each Employee, such Employee's job title and the date of commencement of employment of such Employee. Seller has accrued on its books and records all obligations for salaries, vacations, benefits and other compensation with respect to its Employees and any of its Former Employees (as defined below), to the extent required by GAAP, including, but not limited foregoing) maintained or contributed to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agents. Seller does not currently offer, and has never offered, retiree health and insurance benefits to Employees and Former Employees, and Seller has no liabilities (contingent or otherwise) with respect thereto. Except as set forth in the Schedule 2.12(a), there are no outstanding loans from Seller to under which any of its affiliates. Complete and correct copies of all material written agreements with or concerning Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to Buyer, and a list of all such agreements and policies is set forth in the Schedule 2.12(a) Except as set forth in Schedule 2.12(a), none of the Employees has, to the best knowledge of Seller and each Seller Stockholder, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with the transactions contemplated by this Agreement. Except as set forth in the Seller Schedules, since September 30, 1999Company, Seller has not (i) except or their Affiliates could have any direct or indirect Liability, in the ordinary course of business and consistent with past practiceeach case, increased the salary or other compensation payable or to become payable to or for the benefit of or relating to any Company Employee, director or consultant of the EmployeesCompany or any Company Subsidiary (whether or not material, (iithe “Employee Plans”), excluding expired or fully performed agreements under which neither the Company nor any Company Subsidiary could have any Liability whatsoever. Section 4.11(a) provided any of the Employees with Company Disclosure Schedule separately designates each Employee Plan that is sponsored or maintained by the Company or any increased security Company Subsidiary (whether or tenure of employmentnot material, (iii) increased the amounts payable “Company Employee Plans”). Each Employee Plan that is not a Company Employee Plan is hereinafter referred to any as a “Seller Employee Plan.” No Employee Plan is maintained outside the jurisdiction of the United States or covers any Company Employees upon the termination of any such person's employment or (iv) adopted, increased, augmented or improved benefits granted to or for the benefit of any other service providers of the Employees under Company or any Benefit PlanCompany Subsidiary who reside or work outside of the United States.

Employees; Employee Benefits. (a) Schedule 2.12(a3.13(a) sets forth the names of all employees of Seller the Company and the Subsidiaries, other than temporary employees, as of the date of this Agreement October 15, 1999 (the "Employees") and, with respect to each Employee, such Employee's job title and the date of commencement of employment of such Employee. Seller The Company has accrued on its books and records all obligations for salaries, vacations, benefits and other compensation with respect to its Employees and any of its Former Employees (as defined belowthat term is hereinafter defined), to the extent required by GAAP, including, but not limited to, severance, bonuses, incentive and deferred compensation, and all commissions and other fees payable to salespeople, sales representatives and other agents. Seller The Company accrues for vacation benefits, but does not accrue for sick pay benefits. The Company and its Subsidiaries do not currently offer, and has have never offered, retiree health and insurance benefits to Employees and Former Employees, and Seller neither the Company nor any of its Subsidiaries has no any liabilities (contingent or otherwise) with respect thereto. Except as set forth in the on Schedule 2.12(a3.13(a), there are no outstanding loans from Seller the Company or any Subsidiary to any of its affiliatesRelated Party. Complete and correct copies of all material written agreements with or concerning Employees, including, without limitation, union and collective bargaining agreements, and all employment policies, and all amendments and supplements thereto, have been delivered to BuyerSpotless, and a list of all such agreements and policies is set forth in the on Schedule 2.12(a) Except as set forth in Schedule 2.12(a3.13(a), none . None of the Employees has, to the best knowledge of Seller and each Seller Stockholderthe Company, indicated a desire to terminate his or her employment other than at normal retirement age, or any intention to terminate his or her employment in connection with the transactions contemplated by this Agreement. Except as set forth in the Seller Scheduleson Schedule 3.13(a), since September 30May 1, 1999, Seller neither the Company nor any Subsidiary has not (i) except in the ordinary course of business and consistent with past practice, increased the salary or other compensation payable or to become payable to or for the benefit of any of the Employees, (ii) provided any of the Employees with any increased security or tenure of employment, (iii) increased the amounts payable to any of the Employees upon the termination of any such person's employment or (iv) adopted, increased, augmented or improved benefits granted to or for the benefit of any of the Employees under any Benefit Plan.