Benefit Plans; ERISA (a) The Company Disclosure Schedule sets forth a complete list of all "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefit, stock, stock option, severance, termination pay, change in control or other material employee benefit plans, programs, arrangements or agreements currently maintained, or contributed to, or required to be maintained or contributed to, by the Company, the Majority Stockholder or any Person that, together with the Company, is treated as a single employer under Section 414 of the Code for the benefit of any current or former employees, officers, directors or independent contractors of the Company or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans"). The Company has delivered or made available to Parent true, complete and correct copies of each Benefit Plan. (b) Each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and other applicable law, except where the failure to so administer or comply would not have a Company Material Adverse Effect. (c) All Benefit Plans intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Benefit Plans are qualified and exempt from federal income taxes under Section 401(a) and 501(a), respectively, of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification. (d) No Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code and no Benefit Plan is a "multiemployer plan" (as defined in Section 3(37) of ERISA). (e) No Person has incurred any material liability under Title IV of ERISA or Section 412 of the Code during the time such Person was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Company Material Adverse Effect. (f) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(l) of ERISA), (i) no such Benefit Plan provides benefits, including without limitation, death or medical benefits, beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (ii) each such Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without liability that would have a Company Material Adverse Effect. (g) The execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee of the Company or any of its Subsidiaries, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or Parent to cause any such Benefit Plan to be amended or terminated (or which would result in any materially adverse consequence for so doing). No payment or benefit that will or may be made by the Company, Parent, or any of their respective subsidiaries or affiliates with respect to any employee of the Company or any of its Subsidiaries under any Benefit Plan in connection with the Offer and the Merger will be characterized as an "excess parachute payment," within the meaning of Section 280G(b)(1) of the Code. The parties hereby agree to use their commercially reasonable efforts to limit the application of Section 280G(b)(1) of the Code to the transactions contemplated hereby.
ERISA; Benefit Plans Each Borrower will comply with all requirements of ERISA applicable to it and will not materially increase its liabilities under or violate the terms of any present or future benefit plans maintained by it without the prior approval of the Agent. Each Borrower will furnish to the Agent as soon as possible and in any event within 10 days after the Borrower or a duly appointed administrator of a plan (as defined in ERISA) knows or has reason to know that any reportable event, funding deficiency, or prohibited transaction (as defined in ERISA) with respect to any plan has occurred, a statement of the chief financial officer of such Borrower describing in reasonable detail such reportable event, funding deficiency, or prohibited transaction and any action which such Borrower proposes to take with respect thereof, together with a copy of the notice of such event given to the Pension Benefit Guaranty Corporation or the Internal Revenue Service or a statement that said notice will be filed with the annual report of the United States Department of Labor with respect to such plan if such filing has been authorized.
Employee Plans Except as provided in Section 4.12, the Assuming Institution shall have no liabilities, obligations or responsibilities under the Failed Bank's health care, bonus, vacation, pension, profit sharing, deferred compensation, 401K or stock purchase plans or similar plans, if any, unless the Receiver and the Assuming Institution agree otherwise subsequent to the date of this Agreement.
ERISA Affiliate Any Person which is treated as a single employer with the Borrower under §414 of the Code.
ERISA Plans Any one or more of the following events occurs with respect to a Plan of the Borrower subject to Title IV of ERISA, provided such event or events could reasonably be expected, in the judgment of the Bank, to subject the Borrower to any tax, penalty or liability (or any combination of the foregoing) which, in the aggregate, could have a material adverse effect on the financial condition of the Borrower: (a) A reportable event shall occur under Section 4043(c) of ERISA with respect to a Plan. (b) Any Plan termination (or commencement of proceedings to terminate a Plan) or the full or partial withdrawal from a Plan by the Borrower or any ERISA Affiliate.
Benefit Plans (i) Section 3.2(i) of the Company Disclosure Schedule sets forth a true and complete list of each material Company Benefit Plan. A “Company Benefit Plan” is a Benefit Plan (x) maintained, entered into or contributed to by Company or any of its Subsidiaries under which any present or former employee, director, independent contractor or consultant of Company or any of its Subsidiaries has any present or future right to benefits or (y) under which Company or any of its Subsidiaries could reasonably be expected to have any present or future liability. No Company Benefit Plan is subject to Section 302 or Title IV of ERISA of section 412 of the Code. No Company Benefit Plan is a multiemployer plan, as defined in Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) of ERISA. (ii) With respect to each material Company Benefit Plan, Company has made available to Parent a current, accurate and complete copy thereof, and, to the extent applicable: (A) any related trust agreement or other funding instrument; (B) the most recent determination letter, if applicable; (C) any summary plan description and summaries of material modifications; and (D) the most recent year’s Form 5500 and attached schedules and audited financial statements. Except as would not reasonably be expected to have a material adverse effect on Company, each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination letter to that effect from the Internal Revenue Service and Company is not aware of any reason why any such determination letter should be revoked or not be reissued. Each Company Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Benefit Plan with such exceptions as would not be reasonable expected to have a material adverse effect on Company. No events have occurred with respect to any Company Benefit Plan that could result in payment or assessment by or against Company or any Company ERISA Affiliate (as defined in paragraph (v) below) of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code with such exceptions as would not be reasonably expected to have a material adverse effect on Company. (iii) With respect to the Company Benefit Plans, individually and in the aggregate, no event has occurred and there exists no condition or set of circumstances in connection with which Company or any of its Subsidiaries could be subject to any liability that would reasonably be expected to have a material adverse effect on Company under ERISA, the Code or any other applicable law. (iv) There is no contract, plan or arrangement (whether or not written) covering any employee or former employee of Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code, as a result of the transactions contemplated hereby alone or together with any other event. (v) Except as would not reasonably be expected to have a material adverse effect on Company or any of its Subsidiaries, (A) no liability under Title IV or section 302 of ERISA has been incurred by Company, or by any trade or business, whether or not incorporated, that together with Company would be deemed a “single employer” within the meaning of section 4001(b) of ERISA (a “Company ERISA Affiliate”), that has not been satisfied in full, and (B) no condition exists that presents a risk to Company or any Company ERISA Affiliate of incurring any such liability. (vi) There is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of Company or its Subsidiaries, except as required to avoid excise tax under Section 4980B of the Code. (vii) All contributions and payments due under each Company Benefit Plan, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Effective Time, will be discharged and paid on or prior to the Effective Time except to the extent accrued as a liability in accordance with ordinary Company practice.
Welfare Benefit Plans During the Employment Period, the Executive and/or the Executive's family, as the case may be, shall be eligible for participation in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company and its affiliated companies (including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with benefits which are less favorable, in the aggregate, than the most favorable of such plans, practices, policies and programs in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.
Company Plans Section 1.11(a)................ 6 Company................................Preamble....................... 1
Employee Benefit Plans; ERISA (i) Such party's Disclosure Schedule sets forth a true and complete list of each material employee or director benefit plan, arrangement or agreement (including, without limitation, stock purchase, stock option, severance, employment, change in control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA) that is maintained, or contributed to, as of the date of this Agreement (the "Benefit Plans") by such party or any of its Subsidiaries or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), all of which together with such party would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). (ii) Such party has made available to the other party true and complete copies of each of such party's Benefit Plans and certain related documents, including, but not limited to, (A) the actuarial report for such party's Benefit Plans (if applicable) for each of the last two years, and (B) the most recent determination letter from the IRS (as defined herein) (if applicable) for such plan. (iii) Except as would not reasonably be expected to have a Material Adverse Effect (A) each of such party's Benefit Plans has been operated and administered in all material respects in accordance with their terms and with applicable laws, including, but not limited to, ERISA and the Code, (B) each of such party's Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter with respect to such qualified status, or such Benefit Plans shall be submitted for such determination in a timely fashion and there are no existing circumstances or events that have occurred that could reasonably be expected to adversely affect the qualified status of any such plan, (C) with respect to each Benefit Plan of such party which is subject to Title IV of ERISA, 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, as of its latest valuation date, exceed the then current value of the assets of such Plan allocable to such secured benefits, (D) no Benefit Plan of such party provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of such party or its Subsidiaries beyond their retirement or other termination of service, other than (1) coverage mandated by applicable law, (2) death benefits or retirement benefits under any "employee pension plan" (as such term is defined in Section 3(2) of ERISA), (3) deferred compensation benefits accrued as liabilities on the books of such party or its Subsidiaries or (4) benefits the full cost of which is borne by the current or former employee or director (or his beneficiary), (E) no material liability under Title IV of ERISA has been incurred by such party, its Subsidiaries or any ERISA Affiliate that has not been satisfied in full, and no condition exists that could reasonably be expected to present a material risk to such party, its Subsidiaries or any ERISA Affiliate of such party incurring a material liability thereunder (other than the payment of premiums and funding obligations in the ordinary course of business), (F) no Benefit Plan is a "multiemployer pension plan" (as such term is defined in Section 3(37) of ERISA), (G) all contributions or other amounts payable by such party or its Subsidiaries as of the Effective Time with respect to each Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with GAAP and Section 412 of the Code, (H) neither such party nor its Subsidiaries has engaged in a transaction with respect to such party's Benefit Plans in connection with which such party or its Subsidiaries reasonably could be subject to either a material civil penalty accessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code, and (I) to the best knowledge of such party, there are no pending, threatened or anticipated claims (other than routine claims for benefits) by, on behalf of or against any of the Benefit Plans of such party or any trusts related thereto. (iv) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment (including, without limitation, severance, unemployment compensation, "excess parachute payment" (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any director or any employee of such party or any of its Subsidiaries under any Benefit Plan of such party or otherwise, (B) materially increase any benefits otherwise payable under any Benefit Plan of such party or (C) result in any acceleration of the time of payment or vesting of any such benefits to any material extent. Notwithstanding the foregoing, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will constitute or be deemed a "Change of Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan.
Health and Welfare Benefit Plans During the Employment Period, Executive and Executive’s immediate family shall be entitled to participate in such health and welfare benefit plans as the Employer shall maintain from time to time for the benefit of senior executive officers of the Employer and their families, on the terms and subject to the conditions set forth in such plan. Nothing in this Section shall limit the Employer’s right to change or modify or terminate any benefit plan or program as it sees fit from time to time in the normal course of business so long as it does so for all senior executives of the Employer.
