Common use of ERISA; Benefit Plans Clause in Contracts

ERISA; Benefit Plans. (a) Schedule 4.13(a) sets forth a list, as of the date of this Agreement, of all material deferred compensation, retirement, profit-sharing, and pension benefit plans (as described in Section 3(2) of ERISA, whether or not subject to ERISA) and all material incentive compensation plans, bonus plans, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including any healthcare flexible spending accounts), dependent care, medical care, dental care, vision care, insurance (including death and disability), employee assistance, education assistance or tuition assistance plans or programs, employee welfare benefit plans (as defined in Section 3(1) of ERISA and whether or not subject to ERISA) and any currently effective executive compensation or severance agreements, written or otherwise, of Seller or Seller’s ERISA Affiliates as defined in section 414(b), (c), (m) or (o) of the Code (“ERISA Affiliates”) that are not maintained or sponsored by the Company or any of the Subsidiaries but (i) in which Company Employees participate or (ii) to which the Company or any of the Subsidiaries makes, or are required to make, contributions with respect to certain Company Employees, or in which the Company or any of the Subsidiaries is a participating employer (collectively, the “Seller’s Benefit Plans”). Although the rights of Company Employees to participate further in Seller’s Benefit Plans may be terminated in the manner specified under Section 6.10, none of the Seller’s Benefit Plans will be terminated as a result of this Agreement. (b) Schedule 4.13(b) sets forth a list, as of the date of this Agreement, of all material deferred compensation, retirement, profit-sharing, and pension benefit plans (as described in Section 3(2) of ERISA whether or not subject to ERISA), and all material incentive compensation plans, bonus plans, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including any healthcare flexible spending account), dependent care, medical care, dental care, vision care, insurance (including death and disability), employee assistance, education assistance or tuition assistance plans or programs and employee welfare benefit plans (as defined in Section 3(1) of ERISA) maintained or sponsored by the Company or any of the Subsidiaries with respect to Company Employees, as well as the written vacation/sick policy of the Company and the Subsidiaries, and any executive employment, compensation or severance agreement, written or otherwise, that was sponsored, entered into, or maintained by the Company or any of the Subsidiaries, in each case during the six year period ending on the date of this Agreement and for which the Company or any Subsidiary will incur any liability after the Closing Date (the “Company Employee Plans” and, together with the Seller’s Benefit Plans described in Section 4.13(a) above, the “Benefit Plans”). Except, for purposes of Sections 4.13(c) through (i) below, as set forth on Schedule 4.13(c): (c) Copies of all Benefit Plans concerning which Buyer or Buyer’s Affiliates will incur any liability after the Closing Date have been made available to Buyer. Seller has also made available to Buyer descriptions of all lawsuits, claims filed and pending (other than for benefits in the normal course), grievances pending and similar formal actions pending with respect to the Company Employee Plans of which Seller is aware. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company Employee Plans are in compliance with the presently applicable provisions of ERISA, the Code and other applicable laws, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (d) None of the Company Employee Plans are employee pension benefit plans within the meaning of Section 3(2) of ERISA. No pension benefit plan in whole or in part sponsored, maintained or contributed to (or required to be contributed to) by Seller or any of Seller’s ERISA Affiliates has been terminated or partially terminated under circumstances that would result in any liability to the Company or any Subsidiary under such plan or Title IV of ERISA. (e) As of the date of this Agreement, no more than three Company Employees, each of whom formerly was employed by CECONY, participate in the Consolidated Edison Retirement Plan. Company Employees participate in the Consolidated Xxxxxx Xxxxxx Savings Plan (401(k)Plan). Company Employees will no longer be eligible to receive benefit accruals or contributions under the Consolidated Edison Retirement Plan or the Consolidated Xxxxxx Xxxxxx Savings Plan after the Closing Date. Each of the Consolidated Edison Retirement Plan and the Consolidated Xxxxxx Xxxxxx Savings Plan has received a letter from the IRS evidencing the IRS’s determination that each such plan is qualified under Section 401(a) of the Code, as currently in effect, and nothing has occurred or failed to occur in connection with the adoption, maintenance or operation of either such plan that would cause the loss of such qualification. (f) Neither the Company, the Subsidiaries, the Seller, nor any ERISA Affiliate participates or has ever participated in a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA or Section 4001(a)(3) of ERISA), nor has the Seller or any ERISA Affiliate ever made a complete or partial withdrawal from a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA) resulting in “withdrawal liability” (as such term is defined in Section 4201 of ERISA), without regard to any subsequent waiver or reduction under Section 4207 or 4208 of ERISA. (g) Contributions and any premiums that are required to be made by the Seller, the Company, the Subsidiaries or any ERISA Affiliate pursuant to either any Seller’s Benefit Plan or any Company Employee Plan, which may be subject to Section 412 of the Code, or pursuant to a collective bargaining agreement, if applicable, for each of the five consecutive plan years ending prior to the Closing Date have been made on or before their respective due dates and a reasonable amount has been accrued on the books of the Seller, the Company, the Subsidiaries and/or any ERISA Affiliate, as applicable, for any such contributions for the current plan year in accordance with GAAP. (h) Seller’s Affiliate, CECONY, currently maintains a retiree health program for individuals who are participants in the Consolidated Edison Retirement Plan and who meet certain other eligibility requirements. As of the date of this Agreement, there are no more than three Company Employees who are participants in the Consolidated Edison Retirement Plan due to their prior employment with CECONY and who would be eligible to receive retiree health benefits if the other eligibility requirements for such benefits were satisfied, but for whom such other eligibility requirements will not be satisfied if the Closing occurs before the date on which either Buyer or Seller may terminate this Agreement pursuant to Section 10.1(a)(iii). In any event, pursuant to the terms of Section 6.10(b), neither the Company nor the Subsidiaries will be obligated to make any payments to (i) any Company Employee (including any Company Employee described in the immediately preceding sentence) who may be (or may become) entitled to benefits under the retiree health program described in the first sentence of this Section 4.13(h) for, or with respect to, such benefits or (ii) such retiree health plan with respect to any Company Employee after the Closing Date. Other than (i) the potential retiree medical benefits described in the first sentence of this paragraph (h), (ii) the right to obtain continued health coverage under applicable COBRA provisions, and (iii) the right of certain employees pursuant to the Company CIC Plan or the Company Key Employee CIC Plan for a limited period of time after the Closing Date as described in such Company CIC Plan or such Company Key Employee CIC Plan, as applicable, to participate in the medical plan maintained by the Company or the Subsidiaries after the Closing Date, neither the Company nor the Subsidiaries (A) have any plans or arrangements that provide for medical coverage after termination of employment with the Company or (B) sponsor, maintain, participate in, or contribute to (or have any obligation to contribute to) any voluntary employee benefit association intended to be exempt under Section 501(c)(9) of the Code. (i) Other than routine claims for benefits, there are no claims pending or, to the knowledge of Seller, threatened, against any Company Employee Plan or against the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan, nor are there any current or, to the knowledge of Seller, threatened, liens on the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company and the Subsidiaries have performed all material obligations required to be performed by them under the Company Employee Plans.

ERISA; Benefit Plans. (a) Schedule 4.13(a4.9(a) sets forth a listlists each employee benefit plan, including each employee benefit plan as of the date of this Agreement, of all material deferred compensation, retirement, profit-sharing, and pension benefit plans (as described defined in Section 3(23(3) of ERISA, each multiemployer plan as defined in Section 3(37) of ERISA, each multiple employer plan within the meaning of Code Section 413(c), each multiple employer welfare arrangement as defined in Section 3(40) of ERISA, and each other plan, contract, agreement, arrangement or policy, whether written or not subject to ERISA) and all material incentive compensation plansoral, bonus plansqualified or non-qualified, plans providing for stock ownership(i) compensation, stock purchaseseverance benefits, stock optionsbonuses, phantom stockprofit-sharing or other forms of incentive compensation; (ii) vacation, severanceholiday, change in controlsickness or other time-off; (iii) health, section 125 cafeteria (including any healthcare flexible spending accounts)medical, dependent caredental, medical caredisability, dental carelife, vision care, insurance (including accidental death and disability)dismemberment, employee assistance, education assistance educational assistance, relocation or tuition assistance plans fringe benefits or programsperquisites, employee welfare including post-employment benefits; and (iv) deferred compensation, defined benefit plans (as or defined in Section 3(1) contribution, retirement or pension benefits, or equity grants that covers any Palisades Employee, or that is maintained, administered or with respect to which contributions are made by any of ERISA and whether or not subject to ERISA) and any currently effective executive compensation or severance agreementsNMC, written or otherwise, of Seller or Seller’s ERISA Affiliates as defined in section 414(brespect of Palisades Employees or their beneficiaries ("Benefit Plans"). True, (c)correct, (m) or (o) and complete copies of the Code (“ERISA Affiliates”) that are not maintained or sponsored by the Company or any of the Subsidiaries but (i) in which Company Employees participate or all such Benefit Plans, including all amendments thereto and other information regarding benefit changes that have been previously communicated, (ii) all related trust agreements, insurance contracts and funding arrangements that implement each such Benefit Plan, (iii) all related summary plan descriptions and summaries of material modifications of such Benefit Plans, (iv) all determination letters received from the IRS pertaining to which any such Benefit Plan, (v) all annual reports (IRS Forms 5500) for the Company or three (3) most recent plan years for each such Benefit Plan, (vi) all compliance testing data and results for the three (3) most recent plan years for each such Benefit Plan and (vii) all communications with any of the Subsidiaries makes, or are required to make, contributions Governmental Authority with respect to certain Company Employees, or in which the Company or any of the Subsidiaries is a participating employer (collectively, the “Seller’s each Benefit Plans”). Although the rights of Company Employees to participate further in Seller’s Benefit Plans may be terminated in the manner specified under Section 6.10, none of the Seller’s Benefit Plans will be terminated as a result of this Agreement. (b) Schedule 4.13(b) sets forth a list, as of the date of this Agreement, of all material deferred compensation, retirement, profit-sharing, and pension benefit plans (as described in Section 3(2) of ERISA whether or not subject to ERISA), and all material incentive compensation plans, bonus plans, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including any healthcare flexible spending account), dependent care, medical care, dental care, vision care, insurance (including death and disability), employee assistance, education assistance or tuition assistance plans or programs and employee welfare benefit plans (as defined in Section 3(1) of ERISA) maintained or sponsored by the Company or any of the Subsidiaries with respect to Company Employees, as well as the written vacation/sick policy of the Company and the Subsidiaries, and any executive employment, compensation or severance agreement, written or otherwise, that was sponsored, entered into, or maintained by the Company or any of the Subsidiaries, in each case during the six year period ending on the date of this Agreement and for which the Company or any Subsidiary will incur any liability after the Closing Date (the “Company Employee Plans” and, together with the Seller’s Benefit Plans described in Section 4.13(a) above, the “Benefit Plans”). Except, for purposes of Sections 4.13(c) through (i) below, as set forth on Schedule 4.13(c): (c) Copies of all Benefit Plans concerning which Buyer or Buyer’s Affiliates will incur any liability after the Closing Date Plan have been made available to Buyer. Except as set forth on Schedule 4.9(a), no such information with respect to the Big Rock ISFSI Employee(s) has been provided. (b) Each Benefit Plan and related trust which is intended to be qualified within the meaning of Code Section 401(a) or tax-exempt under Code Section 501(c)(9) is so qualified or exempt from taxation and has received a favorable determination letter as to its qualification or tax-exempt status under all applicable Laws (or if no favorable determination letter has yet been issued, a request for such determination letter with respect to such Benefit Plan was timely submitted) and has never lost its qualified or tax-exempt status and, to Seller's Knowledge, there are no facts or circumstances that would adversely affect IRS qualification or tax-exempt status. The most recent IRS determination letters and any outstanding request for a determination letter have been furnished by Seller to Buyer. (c) With respect to each Benefit Plan: (i) such Benefit Plan (and each related trust, insurance contract or fund) has been maintained, funded and administered in accordance with the terms of such Benefit Plan and the terms of the Collective Bargaining Agreement, if applicable, and complies in all material respects with all applicable Laws, including ERISA, COBRA, HIPAA, USERRA and the Code, the Securities Act and the Exchange Act; (ii) all required reports and descriptions (including annual reports (IRS Form 5500), summary annual reports, summary plan descriptions and summaries of material modifications) have been filed on a timely basis and/or distributed in accordance with the applicable requirements of ERISA and the Code; (iii) no such Benefit Plan that is an Employee Pension Benefit Plan has been completely or partially terminated, and no proceeding by the PBGC to terminate any such Employee Pension Benefit Plan has been instituted or to Seller's Knowledge threatened; (iv) to Seller's Knowledge no Fiduciary has incurred any Liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of such Benefit Plan, (v) subject to the Collective Bargaining Agreement, such Benefit Plan may be amended, terminated, or otherwise modified by the sponsoring employer (including elimination of future accruals under any such Benefit Plan), and no communication concerning such Benefit Plan or provision in any document governing such Benefit Plan (whether express or implied or written has failed to reserve effectively the right of the sponsoring employer (including, after any assumption of such Benefit Plan, Buyer) to terminate, or make any amendment or modification to such Benefit Plan in whole or in part; (vi) subject to the Collective Bargaining Agreement or as otherwise permitted by Section 6.1(a)(10), neither NMC nor Seller has also made available any commitment to Buyer descriptions establish any new Benefit Plan, to modify any Benefit Plan (except as required under applicable Laws), nor has any intention to do so been communicated in writing to any Palisades Employees or Big Rock ISFSI Employees; (vii) no actions, suits, proceedings, hearings, investigations or claims with respect to the administration or the investment of all lawsuits, claims filed and pending the assets of such Benefit Plan (other than routine claims for benefits in the normal ordinary course)) are pending or threatened, grievances and Seller has no Knowledge of any basis for any such action, suit, proceeding, hearing, investigation or claim; (viii) no administrative investigation, audit or other administrative proceeding by the Department of Labor, the PBGC, the IRS or other Governmental Authority is pending, in progress or threatened; and (ix) as of the date hereof, none of Seller, NMC or any ERISA Affiliate has an application pending and similar formal actions pending with respect to the Company IRS under the Employee Plans of which Seller is aware. Except Compliance Resolution System or has had such an application pursuant to the extent that any Company Employee Plans are Compliance Resolution System or may be subject to its predecessor denied, and if NMC or Seller has previously made such application and a compliance statement has been issued, Seller, NMC or such ERISA Affiliate, as applicable, has signed such statement and made the requirements of Section 409A of applicable correction or will make the Code, applicable correction within the Company Employee Plans are in compliance with the presently applicable provisions of ERISA, the Code and other applicable laws, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effectrequisite time period. (d) None of the Company Employee Plans All contributions, premiums or other payments (including all employer contributions and employee salary reduction and other contributions) that are employee pension benefit plans due have been made within the meaning of Section 3(2) of time periods prescribed by ERISA, the Code or the applicable plan document to each Employee Pension Benefit Plan. No pension benefit plan All contributions for any period ending at or before the Closing which are not yet due have been made to each Employee Pension Benefit Plan or have been properly accrued in whole or in part sponsored, maintained or contributed to (or required to be contributed to) by Seller or any accordance with the past custom and practice of Seller’s ERISA Affiliates has been terminated or partially terminated under circumstances that would result in any liability to the Company or any Subsidiary under such plan or Title IV of ERISA. (e) As of the date of this AgreementNeither NMC, no more than three Company Employees, each of whom formerly was employed by CECONY, participate in the Consolidated Edison Retirement Plan. Company Employees participate in the Consolidated Xxxxxx Xxxxxx Savings Plan (401(k)Plan). Company Employees will no longer be eligible to receive benefit accruals or contributions under the Consolidated Edison Retirement Plan or the Consolidated Xxxxxx Xxxxxx Savings Plan after the Closing Date. Each of the Consolidated Edison Retirement Plan and the Consolidated Xxxxxx Xxxxxx Savings Plan has received a letter from the IRS evidencing the IRS’s determination that each such plan is qualified under Section 401(a) of the Code, as currently in effect, and nothing has occurred or failed to occur in connection with the adoption, maintenance or operation of either such plan that would cause the loss of such qualification. (f) Neither the Company, the Subsidiaries, the Seller, Seller nor any ERISA Affiliate participates has incurred any material Liability, nor, to Seller's Knowledge, are there any facts or circumstances that, would reasonably be expected to subject Seller, NMC or any ERISA Affiliate to any Liability (i) to the PBGC in connection with any Benefit Plan or otherwise under Title IV of ERISA, (ii) under the Code with respect to any such Benefit Plan, or (iii) under COBRA, HIPAA, USERRA or the Code with respect to any such Benefit Plan. Except as set forth in Schedule 4.9(e), no Benefit Plan is or has ever participated in been the subject of a Multiemployer Plan Reportable Event, and no non-exempt "prohibited transaction" (as such term is defined described in Section 406 of ERISA and Section 4975 of the Code) has occurred with respect to any Benefit Plan. None of Seller, NMC or their ERISA Affiliates contributes to, has any obligation to contribute to, or has any Liability (including any withdrawal liability under Section 4201 et. seq. of ERISA) under or with respect to any "multiemployer plan" within the meaning of Section 3(37) of ERISA or Section 4001(a)(3) of ERISA), nor has the Seller or any ERISA Affiliate ever made a complete or partial withdrawal from a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA) resulting in “withdrawal liability” (as such term is defined in Section 4201 of ERISA), without regard with respect to any subsequent waiver or reduction under multiple employer welfare arrangement within the meaning of Section 4207 or 4208 3(40) of ERISA. (gf) Contributions and any premiums that are required to be made by To the Knowledge of Seller, the Company, the Subsidiaries or neither NMC nor Seller nor any ERISA Affiliate pursuant to either or successor corporation, within the meaning of Section 4069(b) of ERISA, has engaged in any Seller’s Benefit Plan or any Company Employee Plan, which transaction that may be subject to Section 412 of the Code, or pursuant to a collective bargaining agreement, if applicable, for each of the five consecutive plan years ending prior to the Closing Date have been made on or before their respective due dates and a reasonable amount has been accrued on the books of the Seller, the Company, the Subsidiaries and/or any ERISA Affiliate, as applicable, for any such contributions for the current plan year in accordance with GAAP. (h) Seller’s Affiliate, CECONY, currently maintains a retiree health program for individuals who are participants in the Consolidated Edison Retirement Plan and who meet certain other eligibility requirements. As of the date of this Agreement, there are no more than three Company Employees who are participants in the Consolidated Edison Retirement Plan due to their prior employment with CECONY and who would be eligible to receive retiree health benefits if the other eligibility requirements for such benefits were satisfied, but for whom such other eligibility requirements will not be satisfied if the Closing occurs before the date on which either Buyer or Seller may terminate this Agreement pursuant to Section 10.1(a)(iii). In any event, pursuant to the terms of Section 6.10(b), neither the Company nor the Subsidiaries will be obligated to make any payments to (i) any Company Employee (including any Company Employee described in the immediately preceding sentence) who may be (or may become) entitled to benefits under the retiree health program described in the first sentence of this Section 4.13(h) for, or with respect to, such benefits or (ii) such retiree health plan with respect to any Company Employee after the Closing Date. Other than (i) the potential retiree medical benefits described in the first sentence of this paragraph (h), (ii) the right to obtain continued health coverage under applicable COBRA provisions, and (iii) the right of certain employees pursuant to the Company CIC Plan or the Company Key Employee CIC Plan for a limited period of time after the Closing Date as described in such Company CIC Plan or such Company Key Employee CIC Plan, as applicable, to participate in the medical plan maintained by the Company or the Subsidiaries after the Closing Date, neither the Company nor the Subsidiaries (A) have any plans or arrangements that provide for medical coverage after termination of employment with the Company or (B) sponsor, maintain, participate in, or contribute to (or have any obligation to contribute to) any voluntary employee benefit association intended to be exempt disregarded under Section 501(c)(94069 or Section 4212(c) of the CodeERISA. (i) Other than routine claims for benefits, there are no claims pending or, to the knowledge of Seller, threatened, against any Company Employee Plan or against the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan, nor are there any current or, to the knowledge of Seller, threatened, liens on the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company and the Subsidiaries have performed all material obligations required to be performed by them under the Company Employee Plans.

ERISA; Benefit Plans. (a) The Company Disclosure Schedule 4.13(a) sets forth contains a list, as of the date of this Agreement, list of all material deferred compensation, retirement, profit-sharing, and "employee pension benefit plans plans" (as described defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA, whether or not subject ")) (sometimes referred to ERISA) and all material incentive compensation plans, bonus plans, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including any healthcare flexible spending accountsherein as "Pension Plans"), dependent care, medical care, dental care, vision care, insurance (including death and disability), employee assistance, education assistance or tuition assistance plans or programs, "employee welfare benefit plans plans" (as defined in Section 3(13(l) of ERISA ERISA), bonus, stock option, stock purchase and whether deferred compensation plans or not subject arrangements, and other employee fringe benefit plans (all the foregoing being herein referred to ERISAas "Benefit Plans") and maintained, or contributed to, by the Company, any currently effective executive compensation of its Subsidiaries or severance agreements, written any entity that is treated as under common control with the Company or otherwise, any of Seller or Seller’s ERISA Affiliates as defined in section its Subsidiaries under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (“ERISA Affiliates”) that are not maintained the "Code"), for the benefit of, or sponsored by relating to, any employees or former employees of the Company or any of the Subsidiaries but its Subsidiaries. The Company has delivered or made available to Newco, or its Affiliates or representatives, true, complete and correct copies of (i) each Benefit Plan (or, in which Company Employees participate or the case of any unwritten Benefit Plan, a description thereof), (ii) the most recent determination letter received from the Internal Revenue Service, (iii) the latest actuarial evaluations, if any, (iv) the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), including Schedule A and Schedule B thereto, (v) the most recent summary plan description for each Benefit Plan for which such a summary plan description is required, and (vi) each trust agreement and group annuity contract relating to any Benefit Plan. (b) Each Benefit Plan has been administered in all material respects in accordance with its terms and the applicable provisions of ERISA and the Code. There are no investigations by any governmental agency, termination proceedings or other claims (except for benefits payable in the normal operation of the Benefit Plans), suits or proceedings or against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that could reasonably give rise to any material liability and, to the Company's knowledge, there are no facts that could reasonably give rise to any material liability in the event of any such investigation, claim, suit or proceeding. All contributions to, and payments from, the Benefit Plans that may have been required to be made in accordance with the Benefit Plans have been timely made. (c) No "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA) has occurred that involves the assets of any Benefit Plan and that could subject the Company or the Subsidiary or any of their employees or, to the Company's knowledge, a trustee, administrator or other fiduciary of any trusts created under any Benefit Plan, to any material tax or penalty on prohibited transactions imposed by Section 4975 of ERISA or the sanctions imposed under Title I of ERISA. None of the Company, any of its Subsidiaries or any trustee, administrator or other fiduciary of any Benefit Plan nor any agent of any of the foregoing has engaged in any transaction or acted or failed to act in a manner that could subject the Company or any of its Subsidiaries to any material liability for breach of fiduciary duty under ERISA or any other applicable law. No liability under Title IV of ERISA has been incurred by the Company, any of its Subsidiaries makesor their affiliates within six years prior to the date hereof that has not been satisfied in full, or are required and, to makethe Company's knowledge, contributions with respect to certain Company Employees, or in which no condition exists that presents a material risk of incurring such liability. (d) At no time within the five years preceding the date of this Agreement has the Company or any of its Subsidiaries been required to contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or incurred any withdrawal liability, within the Subsidiaries is a participating employer (collectivelymeaning of Section 4201 of ERISA, the “Seller’s Benefit Plans”). Although the rights of Company Employees to participate further in Seller’s Benefit Plans may be terminated in the manner specified under Section 6.10, none which liability has not been fully paid as of the Seller’s Benefit Plans will be terminated as a result of this Agreementdate hereof, or announced an intention to withdraw, but not yet completed such withdrawal, from any multiemployer plan. (be) Neither the Company nor any of its Subsidiaries contributes to a Pension Plan that is subject to Section 302 of ERISA or Section 412 of the Code. (f) With respect to any Benefit Plan that is an employee welfare benefit plan, (1) no such Benefit Plan is funded through a welfare benefits fund, as such term is defined in Section 419(e) of the Code, and (2) each such Benefit Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies with the applicable requirements of Section 4980B(f) of the Code. (g) Neither the Company nor any of its Subsidiaries has incurred any liability under Section 4062(b) of ERISA to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA. The Internal Revenue Service has issued a letter for each Benefit Plan identified on the Company Disclosure Schedule 4.13(bdetermining that such plan is exempt from United States Federal Income Tax under Sections 401(a) sets forth and 501(a) of the Code, and there has been no occurrence since the date of any such determination letter which purports to adversely affect such qualification. (h) Neither the Company, any of its Subsidiaries nor any of their affiliates maintains or contributes to, or has any liability (fixed, contingent or otherwise, under any current or former plan) for, medical, health or life insurance benefits for terminated employees of the Company or any of its Subsidiaries or for present employees of the Company or any of its Subsidiaries after termination of their employment (other than any such welfare benefits provided pursuant to Code Section 4980B or ERISA Sections 601-608). (i) The Company Disclosure Schedule contains a true and complete list, as of the date of this Agreement, showing the names of all material deferred compensationemployees who during the fiscal year ended November 30, retirement1999, profit-sharingreceived compensation (including commissions and bonuses) in excess of $50,000. Neither the Company nor any of its Subsidiaries has agreed to increase the salary payable to any employee so listed by more than five percent. (j) The Company has made available to Newco, or its Affiliates or representatives, true and pension benefit plans (as described in Section 3(2) complete copies of ERISA whether or not subject to ERISA)all contracts, and all material incentive compensation plans, bonus plansagreements, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including or arrangements covering any healthcare flexible spending account), dependent care, medical care, dental care, vision care, insurance (including death and disability), employee assistance, education assistance or tuition assistance plans or programs and former employee welfare benefit plans (as defined in Section 3(1) of ERISA) maintained or sponsored by the Company or any of the its Subsidiaries with respect to Company Employees"change of control" or similar provisions or providing for "stay on" bonuses or post-change of control severance payments (each, as well as the written vacation/sick policy a "Change of the Company and the Subsidiaries, and any executive employment, compensation or severance agreement, written or otherwise, that was sponsored, entered into, or maintained by the Company or any of the Subsidiaries, in each case during the six year period ending on the date of this Agreement and for which the Company or any Subsidiary will incur any liability after the Closing Date (the “Company Employee Plans” and, together with the Seller’s Benefit Plans described in Section 4.13(a) above, the “Benefit Plans”Control Arrangement"). Except, for purposes No Change of Sections 4.13(c) through (i) below, as set forth on Schedule 4.13(c): (c) Copies of all Benefit Plans concerning which Buyer Control Arrangement individually or Buyer’s Affiliates will incur any liability after the Closing Date have been made available collectively is expected to Buyer. Seller has also made available to Buyer descriptions of all lawsuits, claims filed and pending (other than for benefits in the normal course), grievances pending and similar formal actions pending with respect give rise to the Company Employee Plans payment of which Seller is aware. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company Employee Plans are in compliance with the presently applicable provisions of ERISA, the Code and other applicable laws, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (d) None of the Company Employee Plans are employee pension benefit plans within the meaning of Section 3(2) of ERISA. No pension benefit plan in whole or in part sponsored, maintained or contributed to (or required to be contributed to) by Seller or any of Seller’s ERISA Affiliates has been terminated or partially terminated under circumstances amount that would result in any liability to the Company or any Subsidiary under such plan or Title IV of ERISA. (e) As of the date of this Agreement, no more than three Company Employees, each of whom formerly was employed by CECONY, participate in the Consolidated Edison Retirement Plan. Company Employees participate in the Consolidated Xxxxxx Xxxxxx Savings Plan (401(k)Plan). Company Employees will no longer be eligible to receive benefit accruals or contributions under the Consolidated Edison Retirement Plan or the Consolidated Xxxxxx Xxxxxx Savings Plan after the Closing Date. Each of the Consolidated Edison Retirement Plan and the Consolidated Xxxxxx Xxxxxx Savings Plan has received a letter from the IRS evidencing the IRS’s determination that each such plan is qualified under Section 401(a) of the Code, as currently in effect, and nothing has occurred or failed to occur in connection with the adoption, maintenance or operation of either such plan that would cause the loss of such qualification. (f) Neither the Company, the Subsidiaries, the Seller, nor any ERISA Affiliate participates or has ever participated in a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA or Section 4001(a)(3) of ERISA), nor has the Seller or any ERISA Affiliate ever made a complete or partial withdrawal from a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA) resulting in “withdrawal liability” (as such term is defined in Section 4201 of ERISA), without regard to any subsequent waiver or reduction under Section 4207 or 4208 of ERISA. (g) Contributions and any premiums that are required to be made by the Seller, the Company, the Subsidiaries or any ERISA Affiliate pursuant to either any Seller’s Benefit Plan or any Company Employee Plan, which may be subject to Section 412 of the Code, or pursuant to a collective bargaining agreement, if applicable, for each of the five consecutive plan years ending prior to the Closing Date have been made on or before their respective due dates and a reasonable amount has been accrued on the books of the Seller, the Company, the Subsidiaries and/or any ERISA Affiliate, as applicable, for any such contributions for the current plan year in accordance with GAAP. (h) Seller’s Affiliate, CECONY, currently maintains a retiree health program for individuals who are participants in the Consolidated Edison Retirement Plan and who meet certain other eligibility requirements. As of the date of this Agreement, there are no more than three Company Employees who are participants in the Consolidated Edison Retirement Plan due to their prior employment with CECONY and who would be eligible to receive retiree health benefits if the other eligibility requirements for such benefits were satisfied, but for whom such other eligibility requirements will not be satisfied if the Closing occurs before the date on which either Buyer or Seller may terminate this Agreement deductible by Newco pursuant to Section 10.1(a)(iii). In any event, pursuant to the terms of Section 6.10(b), neither the Company nor the Subsidiaries will be obligated to make any payments to (i) any Company Employee (including any Company Employee described in the immediately preceding sentence) who may be (or may become) entitled to benefits under the retiree health program described in the first sentence of this Section 4.13(h) for, or with respect to, such benefits or (ii) such retiree health plan with respect to any Company Employee after the Closing Date. Other than (i) the potential retiree medical benefits described in the first sentence of this paragraph (h), (ii) the right to obtain continued health coverage under applicable COBRA provisions, and (iii) the right of certain employees pursuant to the Company CIC Plan or the Company Key Employee CIC Plan for a limited period of time after the Closing Date as described in such Company CIC Plan or such Company Key Employee CIC Plan, as applicable, to participate in the medical plan maintained by the Company or the Subsidiaries after the Closing Date, neither the Company nor the Subsidiaries (A) have any plans or arrangements that provide for medical coverage after termination of employment with the Company or (B) sponsor, maintain, participate in, or contribute to (or have any obligation to contribute to) any voluntary employee benefit association intended to be exempt under Section 501(c)(9) 280G of the Code. (i) Other than routine claims for benefits, there are no claims pending or, to the knowledge of Seller, threatened, against any Company Employee Plan or against the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan, nor are there any current or, to the knowledge of Seller, threatened, liens on the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company and the Subsidiaries have performed all material obligations required to be performed by them under the Company Employee Plans.

ERISA; Benefit Plans. (a) Schedule 4.13(a) sets forth a list, as of the date of this Agreement, of all material deferred compensation, retirement, profit-sharing, retirement and pension benefit plans (as described in Section 3(2) of ERISA, whether or not subject to ERISA) and all material incentive compensation plans, bonus plans, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including any healthcare flexible spending accounts)cafeteria, dependent care, medical care, dental care, vision care, insurance (including death and disability)insurance, employee assistance, education assistance or tuition assistance plans or programs, employee welfare benefit plans (as defined in Section 3(1) of ERISA and whether or not subject to ERISA) and any currently effective executive compensation or severance agreements, written or otherwise, of Seller or Seller’s ERISA Affiliates as defined in section 414(b), (c), (m) or (o) 414 of the Code (“ERISA Affiliates”) that are not maintained or sponsored by the Company or any of the Subsidiaries but (i) in which employees of the Company Employees or any of the Subsidiaries (collectively, “Company Employees”) participate or (ii) to which the Company or any of the Subsidiaries makes, or are required to make, makes contributions with respect to certain Company Employees, or in which the Company or any of the Subsidiaries is a participating employer (collectively, the “Seller’s Benefit Plans”). Although the rights of Company Employees to participate further in Seller’s Benefit Plans may be terminated in the manner specified under Section 6.10, none of the Seller’s Benefit Plans will be terminated as a result of this Agreement. (b) Schedule 4.13(b) sets forth a list, as of the date of this Agreement, of all material deferred compensation, retirement, profit-sharing, retirement and pension benefit plans (as described in Section 3(2) of ERISA whether or not subject to ERISA), and all material incentive compensation plans, bonus plans, plans providing for stock ownership, stock purchase, stock options, phantom stock, severance, change in control, section 125 cafeteria (including any healthcare flexible spending account)cafeteria, dependent care, medical care, dental care, vision care, insurance (including death and disability)insurance, employee assistance, education assistance or tuition assistance plans or programs and employee welfare benefit plans (as defined in Section 3(1) of ERISA) maintained or sponsored by the Company or any of the Subsidiaries with respect to Company Employees, as well as the written vacation/sick policy of the Company and the Subsidiaries, and any executive employment, compensation or severance agreement, written or otherwise, that was sponsored, entered into, or maintained by the Company or any of the Subsidiaries, in each case Subsidiaries during the six year period ending on the date of this Agreement and for which the Company or any Subsidiary will incur any liability after the Closing Date (the “Company Employee Plans” and, together with the Seller’s Benefit Plans described in Section 4.13(a) abovePlans, the “Benefit Plans”). Except, for purposes of Sections 4.13(c) through (i) below, as set forth on Schedule 4.13(c): (c) Copies of all Benefit Plans concerning which Buyer or Buyer’s Affiliates will incur any liability after the Closing Date have been made available to Buyer. Seller has also made available to Buyer descriptions of all lawsuits, claims filed and pending (other than for benefits in the normal course), grievances pending and similar formal actions pending with respect to the Company Employee Plans of which Seller is aware. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company Employee Plans are in compliance with the presently applicable provisions of ERISA, the Code and other applicable laws, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (d) None of the Company Employee Plans are employee pension benefit plans within the meaning of Section 3(2) of ERISA. No pension benefit plan in whole or in part sponsored, maintained or contributed to (or required to be contributed to) by Seller or any of Seller’s ERISA Affiliates has been terminated or partially terminated under circumstances that would result in any liability to the Company or any Subsidiary under such plan or Title IV of ERISA. (e) As of the date of this Agreement, no more than three Company Employees, each of whom formerly was employed by CECONY, participate in the Consolidated Edison Retirement Plan. Company Employees participate in the Consolidated Xxxxxx Xxxxxx Savings Plan (401(k)Plan). Company Employees will no longer be eligible to receive benefit accruals or contributions under the Consolidated Edison Retirement Plan or the Consolidated Xxxxxx Xxxxxx Savings Plan after the Closing Date. Each of the Consolidated Edison Retirement Plan and the Consolidated Xxxxxx Xxxxxx Savings Plan has received a letter from the IRS evidencing the IRS’s determination that each such plan is qualified under Section 401(a) of the Code, as currently in effect, and nothing has occurred or failed to occur in connection with the adoption, maintenance or operation of either such plan that would cause the loss of such qualification. (f) Neither the Company, the Subsidiaries, the Seller, nor any ERISA Affiliate participates or has ever participated in a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA or Section 4001(a)(3) of ERISA), nor has the Seller or any ERISA Affiliate ever made a complete or partial withdrawal from a Multiemployer Plan (as such term is defined in Section 3(37) of ERISA) resulting in “withdrawal liability” (as such term is defined in Section 4201 of ERISA), without regard to any subsequent waiver or reduction under Section 4207 or 4208 of ERISA. (g) Contributions and any premiums that are required to be made by the Seller, the Company, the Subsidiaries or any ERISA Affiliate pursuant to either any Seller’s Benefit Plan or any Company Employee Plan, which may be subject to Section 412 of the Code, or pursuant to a collective bargaining agreement, if applicable, for each of the five consecutive plan years ending prior to the Closing Date have been made on or before their respective due dates and a reasonable amount has been accrued on the books of the Seller, the Company, the Subsidiaries and/or any ERISA Affiliate, as applicable, for any such contributions for the current plan year in accordance with GAAP. (h) Seller’s Affiliate, CECONY, currently maintains a retiree health program for individuals who are participants in the Consolidated Edison Retirement Plan and who meet certain other eligibility requirements. As of the date of this Agreement, there are no more than three Company Employees who are participants in the Consolidated Edison Retirement Plan due to their prior employment with CECONY and who would be eligible to receive retiree health benefits if the other eligibility requirements for such benefits were satisfied, but for whom such other eligibility requirements will not be satisfied if the Closing occurs before the date on which either Buyer or Seller may terminate this Agreement pursuant to Section 10.1(a)(iii). In any event, pursuant to the terms of Section 6.10(b), neither the Company nor the Subsidiaries will be obligated to make any payments to (i) any Company Employee (including any Company Employee described in the immediately preceding sentence) who may be (or may become) entitled to benefits under the retiree health program described in the first sentence of this Section 4.13(h) for, or with respect to, such benefits or (ii) such retiree health plan with respect to any Company Employee after the Closing Date. Other than (i) the potential retiree medical benefits described in the first sentence of this paragraph (h), (ii) the right to obtain continued health coverage under applicable COBRA provisions, and (iii) the right of certain employees pursuant to the Company CIC Plan or the Company Key Employee CIC Plan for a limited period of time after the Closing Date as described in such Company CIC Plan or such Company Key Employee CIC Plan, as applicable, to participate in the medical plan maintained by the Company or the Subsidiaries after the Closing Date, neither the Company nor the Subsidiaries (A) have any plans or arrangements that provide for medical coverage after termination of employment with the Company or (B) sponsor, maintain, participate in, or contribute to (or have any obligation to contribute to) any voluntary employee benefit association intended to be exempt under Section 501(c)(9) of the Code. (i) Other than routine claims for benefits, there are no claims pending or, to the knowledge of Seller, threatened, against any Company Employee Plan or against the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan, nor are there any current or, to the knowledge of Seller, threatened, liens on the assets of any Company Employee Plan or of the Company with respect to any Company Employee Plan. Except to the extent that any Company Employee Plans are or may be subject to the requirements of Section 409A of the Code, the Company and the Subsidiaries have performed all material obligations required to be performed by them under the Company Employee Plans.