Disclosure Schedule 2. 8(d) identifies (A) each Loan that as of August 31, 2010 had an outstanding balance and/or unfunded commitment of $250,000.00 or more and that as of such date (i) was contractually past due sixty (60) days or more in the payment of principal and/or interest, (ii) was on non-accrual status, (iii) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “watch list” or “special mention” (or words of similar import) by Cadence, any of its Subsidiaries or the rules of any applicable regulatory authority, (iv) where the interest rate terms had been reduced and/or the maturity dates had been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, (v) where a specific reserve allocation existed in connection therewith, or (vi) which was required to be accounted for as a troubled debt restructuring in accordance with Statement of Financial Accounting Standards No. 15 and (B) each asset of Cadence or any of its Subsidiaries that as of August 31, 2010 had a book value of over $250,000.00 and that was classified as other real estate owned or as an asset to satisfy Loans, including repossessed equipment, and the book value thereof as of such date. For each Loan identified in response to clause (A) above, Disclosure Schedule 2.8(d) sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of August 31, 2010.
Disclosure Schedule 2. 19(a) of the Disclosure Schedule contains a true and complete list of each Plan. “Plan” shall mean each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including multiemployer plans within the meaning of Section 3(37) of ERISA), stock purchase, equity-based compensation, stock option, severance, employment, loan, change-in-control, pension, profit sharing, retirement, fringe benefit, vacation, paid time off, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, programs, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not under which any current or former employee, officer, director, consultant or independent contractor of Cadence or any of its Subsidiaries (“Cadence Employees”) has had or has any present or future vested or contingent right to benefits and which are contributed to, sponsored by, maintained by, or for which there is or may be any liability of Cadence or any of its Subsidiaries or ERISA Affiliates. “ERISA Affiliate” shall mean any person or entity that, together with Cadence, is treated as a single employer under Section 414(b), (c), (m), or (o) of the Code.
Disclosure Schedule 2. 13 (b) sets forth a list of each contract, commitment, arrangement, or understanding, whether oral or written, relating to the employment of, or the performance of services by, any employee, consultant, or independent contractor. The Company is not delinquent in payments to any of its employees for any services performed for it to the date hereof or amounts required to be reimbursed to such employees. To the Company’s knowledge, the Company has complied with all applicable PRC employment and labor laws and regulations, including laws and regulations pertaining to terms and conditions of employment, and wages and hours.
Disclosure Schedule 2. 6(a), which the Company represents and warrants to Parent is accurate and complete, sets forth each Company Shareholder’s portion of the Escrow Amount, calculated in accordance with the foregoing provisions (each such Company Shareholder’s “Escrow Portion”). Each Company Shareholder’s Escrow Portion shall be subject to adjustment pursuant to Section 2.10.3(b) of this Agreement. The adoption of this Agreement and the approval of the Merger by the Company Shareholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including without limitation, the placement of the Shareholder Escrow Amount in the Escrow Fund and the appointment of the Shareholder Representatives pursuant to Section 9.7 hereof.
Disclosure Schedule 2. 1(e) identifies each patent, if any, and each registration which has been issued to the Sellers with respect to any of the Intellectual Property, identifies each pending patent application, if any, and each application for registration which the Sellers has made with respect to any of its Intellectual Property, and identifies each license, agreement, or other permission which the Sellers have granted to any third party with respect to any of the Intellectual Property (together with any exceptions). The Sellers have delivered to the Purchaser correct and complete copies of all such patents, registrations, applications, licenses, agreements, and permissions (as amended to date) and have made available to the Purchaser correct and complete copies of all other written documentation evidencing ownership and prosecution (if applicable) of each such item. Disclosure Schedule 2.1(e) also identifies each trade name or unregistered trademark used by the Sellers in connection with the Business. With respect to each item of Intellectual Property required to be identified in Disclosure Schedule 2.1(e):
(A) the Sellers possess all right, title, and interest in and to the item, free and clear of any Lien, license, or other restriction;
(B) the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge;
(C) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or, to the knowledge of the Sellers, is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; and
(D) the Sellers have not agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to the item.
Disclosure Schedule 2. 13(c) lists each employment, change in control, severance or similar contract with any present or former employee, director or consultant of Cadence (each, a "Compensation Agreement"), the payments due under each Compensation Agreement and the date when such payments are due, including any payments arising as a result of the Merger, and any payments arising from the termination of employment prior to or after the Effective Time (upon request from Trustmark, in the event it is unclear to Trustmark, Cadence will provide a good faith estimate of any amounts not subject to precise quantification as of the date of this Agreement, such as excise taxes or tax indemnification payments in respect of income or excise taxes).
Disclosure Schedule 2. 19 contains a list of all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), and all other deferred compensation or fringe benefit plans, arrangements or practices of Spitz, including without limitation, severance pay, stock options and similar plans or arrangements and other benefit obligations of Spitz, whether oral or written, to any of its employees (the “Benefit Plans”). A true and complete copy of each Benefit Plan has been provided to E&S. The Benefit Plans are the only Benefit Plans maintained by or contributed to by Spitz for the benefit of its stockholder, officers, directors, employees or former employees which are related to the assets of Spitz, or the business of Spitz. Each such Benefit Plan, which is subject to ERISA and the Code, is and always has been in material compliance with the provisions of ERISA and the Code, and they, and all other such plans are in material compliance with all other laws applicable thereto. Spitz maintains no plan or program that provides post-retirement medical or death benefits or other post-retirement health or welfare
Disclosure Schedule 2. 21 also contains a true and correct list of each parcel of real property leased by Spitz, detailing the expiration date of each lease, and the monthly rent payable thereunder. All of the leases detailed in Disclosure Schedule 2.21 are in full force and effect, and, to the knowledge of Spitz, no event has occurred which with the passing of time, the giving of notice, or both, would constitute a default under any of the leases.
Disclosure Schedule 2 contains a complete and accurate list of the following information for each employee or director of each of the Company and the Subsidiaries, including each employee on leave of absence or layoff status: name; job title; current base and bonus compensation paid or payable; any commissions or other compensation paid or payable; vacation earned or accrued; and service credited for purposes of vesting and eligibility to participate under the employee benefit plans of the Company, the Subsidiaries or Seller.
Disclosure Schedule 2. 6(a) lists all of the material items of real property (including Easements) and material pipelines, equipment and other tangible personal property, data and Intellectual Property, used or held for use by the Seller, any Seller Affiliate or the Company in the conduct of the Transferred Business. As of the date hereof, the Seller, a Seller Affiliate or the Company owns, and at the Closing the Company will own, good title to the property included on Disclosure Schedule 2.6(a) (other than Easements) and good and defensible title to the Easements, free and clear of all Liens (other than Permitted Encumbrances). All Easements (as defined below) (i) are valid and enforceable, except as the enforceability thereof may be affected by bankruptcy, insolvency or other Laws of general applicability affecting the rights of creditors generally or principles of equity and (ii) grant all the material rights purported to be granted thereby and all rights necessary thereunder for the current operation of the Transferred Business, except where the failure of any such Easement to be valid and enforceable or to grant the rights purported to be granted thereby or necessary thereunder would not reasonably be expected to materially impair the conduct of the Transferred Business as currently conducted. The Columbia Related Equipment will not be transferred to the Company.
