Common use of Employee Matters; ERISA Clause in Contracts

Employee Matters; ERISA. (i) Except for employment agreements providing benefits (other than material severance benefits) but no employment term other than at will, Section 3.01(l)(i) of the NU Disclosure Schedule contains a true and complete list of each (A) written or material oral deferred compensation, bonus or other incentive compensation, stock purchase, stock option, restricted stock and other equity compensation or ownership plan, program, agreement or arrangement; (B) written or material oral severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(l) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")); (C) profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); (D) written or material oral employment, retention, consulting, termination or severance agreement; and (E) other written or material oral employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by NU or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with NU would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which NU or an ERISA Affiliate is party, for the benefit of any employee or former employee of NU or any NU Subsidiary (the foregoing plans, funds, programs, agreements and arrangements in this Section 3.01(l)(i) being referred to collectively as the "NU Plans"). (ii) With respect to each NU Plan (except for NU Plans that are "multiemployer plans" as that term is defined in Section 3(37) of ERISA), NU has heretofore delivered or made available to CEI true and complete copies of each of the following documents: (A) a copy of each written NU Plan and any amendments thereto; (B) a copy of the two most recent annual reports on Internal Revenue Service Form 5500 and actuarial reports, if required under ERISA, and the most recent report prepared with respect thereto in accordance with Statement of Financial Accounting Standards Nos. 87 and 106; (C) a copy of the most recent Summary Plan Description (including supplements) required under ERISA with respect thereto; (D) if the NU Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement and the latest financial statements thereof and all related agreements; and (E) the most recent determination letter or pending determination letter received from the Internal Revenue Service with respect to each NU Plan intended to qualify under Section 401 or 501(c)(9) of the Code. (iii) No liability under Title IV or Section 302 of ERISA has been incurred by NU or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to NU or any ERISA Affiliate of incurring any such liability, other than liability for premiums due the Pension Benefit Guaranty Corporation ("PBGC") (which premiums have been paid when due) in each case except where such occurrence, individually or in the aggregate, would not have a Material Adverse Effect on NU. No NU Plan has, to the knowledge of NU, engaged in a "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA) not exempted under or pursuant to Section 4975 of the Code or Section 408 of ERISA, no NU Plan subject to Title IV of ERISA (a "Title IV NU Plan") has been terminated by the PBGC or has been the subject of a "reportable event" (as defined in Section 4043 of ERISA and the regulations thereunder) for which the 30-day notice requirement has not been waived and NU has not received any notice of intent by PBGC to terminate any such Plan in each case except where such occurrence, individually or in the aggregate, would not have a Material Adverse Effect on NU. Schedule 3.01(l)(iii) of the NU Disclosure Schedule sets forth, in respect of each of the last two completed plan years, (x) the amount of contributions made by NU and its Affiliates to each Title IV NU Plan and (y) the amount of insurance premiums required to be paid by NU and its Affiliates to the PBGC. (iv) With respect to each Title IV NU Plan, the present value of accrued benefits under such Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Plan's actuary with respect to such Plan did not exceed, as of its latest valuation date, the then current value of the assets of such Plan allocable to such accrued benefits. (v) No Title IV NU Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV NU Plan ended prior to the date of this Agreement nor has there been any application for waiver of the minimum funding standards imposed by Section 412 of the Code. All contributions required to be made with respect to any NU Plan on or prior to the Closing Date have been or will have been timely made or are reflected on the balance sheet except where such failure to make any such contributions, individually or in the aggregate, would not have a Material Adverse Effect on NU. (vi) No Title IV NU Plan is a "multiemployer plan", as defined in Section 3(37) of ERISA, nor is any Title IV NU Plan a plan described in Section 4063(a) of ERISA. (vii) Each NU Plan has been operated and administered in accordance with its terms and Applicable Law, including but not limited to ERISA and the Code, the rules and regulations thereunder, except where such noncompliance, individually or in the aggregate, would not have a Material Adverse Effect on NU. Each NU Plan intended to be "qualified" under Section 401(a) or 501(c)(9) of the Code is so qualified and its trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code. To the knowledge of NU, there is no fact, condition or set of circumstances existing that could adversely affect such favorable determination. To NU's knowledge, there are no investigations pending in respect of any NU Plan by any Governmental Entity.

Employee Matters; ERISA. (ia) Except for employment agreements providing benefits (other than material severance benefits) but no employment term other than at will, Section 3.01(l)(i4.10(a) of the NU Company Disclosure Schedule hereto contains a true and complete list of each (A) written or material oral deferred compensation, compensation and each bonus or other incentive compensation, stock purchase, stock option, restricted stock option and other equity compensation or ownership plan, program, agreement or arrangement; (B) written or material oral each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(l3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")); (C) each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); (D) written or material oral each employment, retention, consulting, termination or severance agreement; and (E) each other written or material oral employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by NU the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with NU the Company would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which NU the Company or an ERISA Affiliate is party, whether written or oral, for the benefit of any employee or former employee of NU the Company or any NU Company Subsidiary (the foregoing plans, funds, programs, agreements and arrangements in this Section 3.01(l)(i) being referred to collectively as the "NU Company Plans"). (iib) With respect to each NU Plan (except for NU Plans that are "multiemployer plans" as that term is defined in Section 3(37) of ERISA)Company Plan, NU the Company has heretofore delivered or made available to CEI true and complete copies of each of the following documents: (Ai) a copy of each written NU the Company Plan and any amendments thereto; (Bii) a copy of the two most recent annual reports on Internal Revenue Service Form 5500 and actuarial reports, if required under ERISA, and the most recent report prepared with respect thereto in accordance with Statement of Financial Accounting Standards NosNo. 87 and 10687; (Ciii) a copy of the most recent Summary Plan Description (including supplements) required under ERISA with respect thereto; (Div) if the NU Company Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement and the latest financial statements thereof and all related agreements; and (Ev) the most recent determination letter or pending determination letter received from the Internal Revenue Service with respect to each NU Company Plan intended to qualify under Section 401 or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"). (iiic) No liability under Title IV or Section 302 of ERISA has been incurred by NU the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to NU the Company or any ERISA Affiliate of incurring any such liability, other than liability for premiums due the Pension Benefit Guaranty Corporation ("PBGC") (which premiums have been paid when due) in each case except where such occurrence, individually or in the aggregate, would not have a Material Adverse Effect on NU). No NU Company Plan has, to the knowledge of NUthe Company, engaged in a "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA) not exempted under or pursuant to Section 4975 of the Code or Section 408 of ERISA), no NU Company Plan subject to Title IV of ERISA (a "Title IV NU Company Plan") has been terminated by the PBGC or has been the subject of a "reportable event" (as defined in Section 4043 of ERISA and the regulations thereunder) for which the 30-day notice requirement has not been waived and NU the Company has not received any notice of intent by PBGC to terminate any such Plan in each case except where such occurrence, individually or in the aggregate, would not have a Material Adverse Effect on NU. Schedule 3.01(l)(iii) of the NU Disclosure Schedule sets forth, in respect of each of the last two completed plan years, (x) the amount of contributions made by NU and its Affiliates to each Title IV NU Plan and (y) the amount of insurance premiums required to be paid by NU and its Affiliates to the PBGCplan. (ivd) With respect to each Title IV NU Company Plan, the present value of accrued benefits under such Planplan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Planplan's actuary with respect to such Plan plan did not exceed, as of its latest valuation date, the then current value of the assets of such Plan plan allocable to such accrued benefits. (ve) No Title IV NU Company Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV NU Company Plan ended prior to the date of this Agreement Closing Date nor has there been any application for waiver of the minimum funding standards imposed by Section 412 of the Code. All contributions required to be made with respect to any NU Company Plan on or prior to the Closing Date have been or will have been timely made or are reflected on the balance sheet except where such failure to make any such contributions, individually or in the aggregate, would not have a Material Adverse Effect on NUsheet. (vif) No Title IV NU Company Plan is a "multiemployer plan", as defined in Section 3(37) of ERISA, nor is any Title IV NU Company Plan a plan described in Section 4063(a) of ERISA. (viig) Each NU Company Plan has been operated and administered in all material respects in accordance with its terms and Applicable Lawapplicable law, including but not limited to ERISA and the Code, the rules and regulations thereunder, except where such noncompliance, individually or in the aggregate, would not have a Material Adverse Effect on NU. Each NU thereunder and all applicable collective bargaining agreements and each Company Plan intended to be "qualified" under Section 401(a) or 501(c)(9) of the Code is so qualified and its trusts maintained thereunder are exempt has received a favorable determination letter from taxation under Section 501(a) of the CodeInternal Revenue Service to such effect. To the knowledge of NUthe Company, there is no fact, condition or set of circumstances existing that could adversely affect such favorable determination. To NUthe Company's knowledge, there are no investigations pending in respect of any NU Company Plan by any Governmental EntityAuthority.

Employee Matters; ERISA. (ia) Except for employment agreements providing benefits (other than material severance benefits) but no employment term other than at will, Section 3.01(l)(i4.10(a) of the NU Company Disclosure Schedule hereto contains a true and complete list of each (A) written or material oral deferred compensation, compensation and each bonus or other incentive compensation, stock purchase, stock option, restricted stock option and other equity compensation or ownership plan, program, agreement or arrangement; (B) written or material oral each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(l3(1) of the Employee Retirement Income Security Act of 1974, as amended ("" ERISA")); (C) each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); (D) written or material oral each employment, retention, consulting, termination or severance agreement; and (E) each other written or material oral employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by NU the Company or by any trade or business, whether or not incorporated (an "" ERISA Affiliate"), that together with NU the Company would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which NU the Company or an ERISA Affiliate is party, whether written or oral, for the benefit of any employee or former employee of NU the Company or any NU Company Subsidiary (the foregoing plans, funds, programs, agreements and arrangements in this Section 3.01(l)(i) being referred to collectively as the "NU " Company Plans"). (iib) With respect to each NU Plan (except for NU Plans that are "multiemployer plans" as that term is defined in Section 3(37) of ERISA)Company Plan, NU the Company has heretofore delivered or made available to CEI true and complete copies of each of the following documents: (Ai) a copy of each written NU the Company Plan and any amendments thereto; (Bii) a copy of the two most recent annual reports on Internal Revenue Service Form 5500 and actuarial reports, if required under ERISA, and the most recent report prepared with respect thereto in accordance with Statement of Financial Accounting Standards NosNo. 87 and 10687; (Ciii) a copy of the most recent Summary Plan Description (including supplements) required under ERISA with respect thereto; (Div) if the NU Company Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement and the latest financial statements thereof and all related agreements; and (Ev) the most recent determination letter or pending determination letter received from the Internal Revenue Service with respect to each NU Company Plan intended to qualify under Section 401 or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the " Code"). (iiic) No liability under Title IV or Section 302 of ERISA has been incurred by NU the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to NU the Company or any ERISA Affiliate of incurring any such liability, other than liability for premiums due the Pension Benefit Guaranty Corporation ("" PBGC") (which premiums have been paid when due) in each case except where such occurrence, individually or in the aggregate, would not have a Material Adverse Effect on NU). No NU Company Plan has, to the knowledge of NUthe Company, engaged in a "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA) not exempted under or pursuant to Section 4975 of the Code or Section 408 of ERISA), no NU Company Plan subject to Title IV of ERISA (a "" Title IV NU Company Plan") has been terminated by the PBGC or has been the subject of a "reportable event" (as defined in Section 4043 of ERISA and the regulations thereunder) for which the 30-day notice requirement has not been waived and NU the Company has not received any notice of intent by PBGC to terminate any such Plan in each case except where such occurrence, individually or in the aggregate, would not have a Material Adverse Effect on NU. Schedule 3.01(l)(iii) of the NU Disclosure Schedule sets forth, in respect of each of the last two completed plan years, (x) the amount of contributions made by NU and its Affiliates to each Title IV NU Plan and (y) the amount of insurance premiums required to be paid by NU and its Affiliates to the PBGCplan. (ivd) With respect to each Title IV NU Company Plan, the present value of accrued benefits under such Planplan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Planplan's actuary with respect to such Plan plan did not exceed, as of its latest valuation date, the then current value of the assets of such Plan plan allocable to such accrued benefits. (ve) No Title IV NU Company Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV NU Company Plan ended prior to the date of this Agreement Closing Date nor has there been any application for waiver of the minimum funding standards imposed by Section 412 of the Code. All contributions required to be made with respect to any NU Company Plan on or prior to the Closing Date have been or will have been timely made or are reflected on the balance sheet except where such failure to make any such contributions, individually or in the aggregate, would not have a Material Adverse Effect on NUsheet. (vif) No Title IV NU Company Plan is a "multiemployer plan", as defined in Section 3(37) of ERISA, nor is any Title IV NU Company Plan a plan described in Section 4063(a) of ERISA. (viig) Each NU Company Plan has been operated and administered in all material respects in accordance with its terms and Applicable Lawapplicable law, including but not limited to ERISA and the Code, the rules and regulations thereunder, except where such noncompliance, individually or in the aggregate, would not have a Material Adverse Effect on NU. Each NU thereunder and all applicable collective bargaining agreements and each Company Plan intended to be "qualified" under Section 401(a) or 501(c)(9) of the Code is so qualified and its trusts maintained thereunder are exempt has received a favorable determination letter from taxation under Section 501(a) of the CodeInternal Revenue Service to such effect. To the knowledge of NUthe Company, there is no fact, condition or set of circumstances existing that could adversely affect such favorable determination. To NUthe Company's knowledge, there are no investigations pending in respect of any NU Company Plan by any Governmental EntityAuthority.