Common use of 401(k) Plan Clause in Contracts

401(k) Plan. The Seller and the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, as promptly as practicable after the Closing Date, by the trustee (the “BOC Trustee”) of the BOC 401(k) Plan to the trustee (the “Purchasers’ Trustee”) of the Purchasers’ 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC 401(k) Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure of the Purchasers’ 401(k) Plan and trust to qualify under Section 401(a) of the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the Code.

401(k) Plan. The Seller If requested by Purchaser in a writing delivered to ▇▇▇▇▇▇▇ following the date hereof and the Purchasers shall co-operate prior to take whatever steps are necessary to effect the spinoff and transfer, as promptly as practicable after the Closing Date, by the trustee ▇▇▇▇▇▇▇ Companies shall take all necessary action (including without limitation the adoption of resolutions and plan amendments and the delivery of any required notices) to terminate, effective immediately prior to the Effective Time, any ▇▇▇▇▇▇▇ Benefit Plan that is intended to constitute a tax-qualified defined contribution plan under IRC Section 401(k) (a “BOC Trustee401(k) Plan”) ). ▇▇▇▇▇▇▇ shall provide Purchaser with a copy of the BOC resolutions, plan amendments, notices and other documents prepared to effectuate the termination of the 401(k) Plan in advance and give Purchaser a reasonable opportunity to comment on such documents (which comments shall be considered in good faith by ▇▇▇▇▇▇▇), and prior to the Closing Date, ▇▇▇▇▇▇▇ shall provide Purchaser with the final documentation evidencing the termination of the 401(k) Plan. In the event of termination of the 401(k) Plan, Purchaser and ▇▇▇▇▇▇▇ shall use commercially reasonable efforts to afford participants in the 401(k) Plan who are Retained Employees with outstanding participant loans under such plan to elect a rollover of the loan balance from the 401(k) Plan to a 401(k) plan of Purchaser in connection with an election by such participant to rollover his or her entire account in the trustee (401(k) Plan to a 401(k) plan of Purchaser, subject to the “Purchasers’ Trustee”) terms and conditions of the Purchasers’ Purchaser’s 401(k) Planplan and the requirements of the Purchaser’s 401(k) plan record-keeper; provided that each such loan satisfies all material legal requirements, is not a nonexempt “prohibited transaction” under Section 406 of cash equal to ERISA or Section 4975 of the account balance (IRC and is not in default as of the day date of the transferrollover. No action taken by ▇▇▇▇▇▇▇ or any of the ▇▇▇▇▇▇▇ Companies pursuant to this Section 5.1(a)(iv) at the request of each Employee Purchaser, and no financial or other effect as a result thereof, whether taken individually or in the BOC 401(k) Planaggregate, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted deemed to have or constitute a Material Adverse Effect for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in connection with the transactions purpose contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC 401(k) Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure of the Purchasers’ 401(k) Plan and trust to qualify under Section 401(a) of the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the Codethis Agreement.

401(k) Plan. The Seller and the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, (i) Effective as promptly as practicable after of the Closing Date, by each Employee who participates in the trustee ▇▇▇▇ Entertainment LLC Retirement Plan (the “BOC TrusteeSeller 401(k) Plan”) shall be fully vested in his or her account balance under the Seller 401(k) Plan. (ii) To the extent that the Seller 401(k) Plan does not permit rollovers (including direct rollovers) of outstanding loans held thereunder, no later than one Business Day prior to the BOC Closing Date, the Sellers shall take such action as is necessary in order for the Seller 401(k) Plan to permit Employees of JCC whose loans are not in default as of such date to rollover outstanding loans to a 401(k) plan maintained by the trustee OpCo Buyer or one of its Affiliates (the “Purchasers’ Trustee”) of the Purchasers’ Buyer 401(k) Plan, ”). The OpCo Buyer shall cause the Buyer 401(k) Plan to accept the rollover by each Employee of cash equal to JCC who is an active employee of the account balance (OpCo Buyer as of the day date of the transfer) rollover of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value all of the account balances Employee’s “eligible rollover distribution” (within the meaning of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC Seller 401(k) Plan Plan, including outstanding plan loans that are not in default as of the date of the rollover, in accordance with applicable Code provisions. The OpCo Buyer and the Seller agree to cooperate in good faith prior to and following the Closing to facilitate and process the rollovers contemplated by this Section 6.03(g) prior to the date any such Employees’ outstanding loans are defaulted under the terms of transfer the loan policy pertaining to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC Seller 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by under applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party including through the preparation and processing of employee communications, election forms and information sharing. (iii) From and after the date hereof the Parties will cooperate in accordance with Article IX against any Losses incurred by it that are attributable good faith to establish a transition plan for the failure transition of the Purchasers’ 401(k) Plan and trust to qualify under Section 401(a) of Company’s employees at the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the CodeClosing.

401(k) Plan. The Seller and shall effectuate a trust-to-trust transfer of the Purchasers shall coaccount balances of Transferred Employees (whether vested or unvested) under any plan that is intended to be a tax-operate qualified defined contribution retirement plan (collectively, the “Seller 401(k) Plan”) to take whatever steps are necessary a plan established by Opco for the benefit of the Transferred Employees that is intended to effect be a tax-qualified defined contribution retirement plan (the spinoff and transfer, as promptly “Opco 401(k) Plan”). As soon as practicable after the Closing Date (but no later than thirty (30) days after the End Date, by ) Seller shall cause the trustee (the “BOC Trustee”) of the BOC Seller 401(k) Plan to value the account of each Transferred Employee who participates in the Seller 401(k) Plan pursuant to the terms of such plan. As of such valuation date, Seller shall cause the trustee of the Seller 401(k) Plan to transfer assets equal in value to the amount credited to each such Transferred Employee’s account under the Seller 401(k) Plan to the trustee (trust maintained under the “Purchasers’ Trustee”) of the Purchasers’ Opco 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion . Such transferred assets shall be accounted for under Section 6.2(d). The amount to be in cash or other property as determined by Seller with the consent of Opco (except the transferred assets shall not also include the value of the account any promissory notes evidencing outstanding loan balances of Transferred Employees and shall be subject to any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected qualified domestic relations order pursuant to receive a distribution (including a direct rollover described in Section 401(a)(31414(p) of the Code) from the BOC 401(k) Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers and shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party be transferred in accordance with Article IX against any Losses incurred by it that are attributable to the failure Section 414(l) of the Purchasers’ 401(k) Plan Code. Prior to, and trust to qualify under as a condition of, any transfer of assets, Seller and Opco shall provide the other with satisfactory evidence that its plan is tax-qualified within the meaning of Section 401(a) of the Code. SimilarlyAs of the transfer date, the Opco 401(k) Plan shall have sole liability for the payment of benefits accrued by Transferred Employees under the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust transferred in respect of such Transferred Employees and neither the Seller 401(k) Plan nor the Seller or its Affiliates shall have any obligation to qualify under Section 401(aOpco or with respect to employees of Opco with respect thereto (except to the extent Seller has made a mistake in the calculation and transfer of assets). If Seller determines in its sole discretion to make a profit sharing contribution to the Seller 401(k) of the Code.Plan for the

401(k) Plan. The Seller Effective immediately prior to the Contribution Time, MusicCo will become sponsor of, and assume all liabilities with respect to, the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, as promptly as practicable after the Closing Date, 401(k) plan maintained by the trustee Company (the “BOC Trustee”) of the BOC 401(k) Plan to the trustee (the “Purchasers’ Trustee”) of the Purchasers’ 401(k) Plan”). Each employee who, after Closing, remains an employee of cash equal to the Company (each, an “Affected Employee”) and who has an account balance (as of under the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC 401(k) Plan prior to the date of transfer to Contribution Time shall be 100% vested in such account effective at the Purchasers’ Contribution Time, notwithstanding any vesting schedule otherwise provided under the 401(k) Plan. The Purchasers Following the Closing, Buyer shall, in consultation with the trustee of its Code Sections 401(a) and 401(k) qualified retirement plan (the “Buyer 401(k) Plan”), determine in good faith whether it is reasonably practical to transfer directly from the 401(k) Plan to the Buyer 401(k) Plan (i) the obligation under the 401(k) Plan for benefit payments to all Affected Employees and (ii) an amount of assets equal to the aggregate account balances of all Affected Employees under the 401(k) Plan. If Buyer determines such transfer to be reasonably practicable pursuant to the preceding sentence, it shall have full responsibility for payment provide notice of such determination to MusicCo and within ninety (90) days following such notice, MusicCo shall direct the trustee of the benefits attributable 401(k) Plan to transfer directly from the 401(k) Plan to the Buyer 401(k) Plan (i) the obligation for benefit payments under the 401(k) Plan to all Affected Employees and (ii) an amount of assets so transferredequal to the aggregate account balances under the 401(k) Plan of all Affected Employees, in both cases valued as of the day immediately preceding the date of transfer. Prior to Assets shall be transferred in cash with the exception that outstanding loans of Affected Employees from the 401(k) Plan shall be transferred in-kind. Pending such transfer, each Employee MusicCo shall have maintain the same rights under the BOC 401(k) Plan accounts of the Affected Employees on the same basis as an active employee who participates other employees of MusicCo; provided, that, MusicCo will not seek to declare any loan in such plan, other than rights default as a result of the Affected Employee’s failure to receive or make additional contributions, initiate new loans or, except where otherwise a required by applicable Law, make payments on existing loansloan payment during the ninety (90) day period from the Contribution Time during which the transfer is pending. The Purchasers shall indemnify each Seller Indemnified Party Buyer 401(k) Plan will (i) provide that the Affected Employees are 100% vested in the amounts transferred from the 401(k) Plan (and any subsequent investment earnings on such amounts), (ii) accommodate the in-kind transfer of the outstanding loans and honor such loans in accordance with Article IX against any Losses incurred by it that are attributable their terms, and (iii) provide for such other benefits, rights and features as required in order to the failure of the Purchasers’ 401(k) Plan and trust to qualify under satisfy Section 401(a411(d)(6) of the Code. Similarly, The parties shall cooperate in making all filings and delivering all notices required in connection with the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the Codeforegoing transfer.

401(k) Plan. The Seller and the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, as promptly as practicable after As of the Closing Date, by the trustee (the “BOC Trustee”) of the BOC 401(k) Plan to the trustee (the “Purchasers’ Trustee”) of the Purchasers’ 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee all Continuing Employees will be fully vested in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the their account balances of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC 401(k) Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure of the Purchasers’ 401(k) Plan defined contribution plan and trust trusts intended to qualify under Section 401(a) of the CodeCode that they participate in prior to the Closing (the “Seller 401(k) Plans”). SimilarlyPromptly following the Closing, Seller shall make to the Seller shall indemnify each Purchaser Indemnified Party in accordance 401(k) Plans all employee contributions and certain other discretionary contributions as set forth on Schedule 7.10 with Article IX against any losses incurred by it that are attributable respect to the failure Continuing Employees employment service rendered prior to the Closing Date (the “Equivalent Contributions”). As of the BOC 401(k) Plan and trust Closing Date, Buyer shall maintain a defined contribution retirement plan intended to qualify under Section 401(a) of the CodeCode (the “Buyer 401(k) Plan”) for the benefit of those Continuing Employees who shall elect and are eligible to participate in the Buyer 401(k) Plan. As soon as reasonably practicable on or following the Closing Date, but in no event later than sixty (60) days following the Closing Date, Buyer shall, for those Continuing Employees who elect and are eligible to participate in the Buyer 401(k) Plan, allow such Continuing Employees to make a “direct rollover” to the Buyer 401(k) Plan of any account balance under a Seller 401(k) Plan, and Buyer shall cause the Buyer 401(k) Plan to accept as rollover contributions, all account balances (which shall include any vested employer contributions accrued (or the Equivalent Contribution therefor) through the Closing Date and all outstanding loans; provided, that (i) the Continuing Employee initiates a direct rollover within sixty (60) days following the Closing Date or such other reasonable time as required by the third-party administrator of a Seller 401(k) Plan and (ii) any Continuing Employee who has an outstanding loan under a Seller 401(k) Plan must elect to roll over such Continuing Employee’s entire balance into the Buyer 401(k) Plan in order to also roll over such loan into the Buyer 401(k) Plan), subject to and in accordance with the provisions of such plans and applicable Law. The Seller 401(k) Plans shall permit rollover distributions consistent with this Section 7.10 for any Continuing Employees who have incurred a termination of employment or otherwise have a distributable event. The Parties agree to cooperate in good faith and to take all necessary and appropriate actions to ensure that loans held by Continuing Employees under the Seller 401(k) Plans do not default, offset or otherwise require repayment (other than pursuant to the payment schedule in effect for such loan) as a result of, or in connection with, the transactions contemplated by this Agreement.

401(k) Plan. The Seller and shall effectuate a trust-to-trust transfer of the Purchasers shall coaccount balances of Transferred Employees (whether vested or unvested) under any plan that is intended to be a tax-operate qualified defined contribution retirement plan (collectively, the “Seller 401(k) Plan”) to take whatever steps are necessary a plan established by Opco for the benefit of the Transferred Employees that is intended to effect be a tax-qualified defined contribution retirement plan (the spinoff and transfer, as promptly “Opco 401(k) Plan”). As soon as practicable after the Closing Date (but no later than thirty (30) days after the End Date, by ) Seller shall cause the trustee (the “BOC Trustee”) of the BOC Seller 401(k) Plan to value the account of each Transferred Employee who participates in the Seller 401(k) Plan pursuant to the terms of such plan. As of such valuation date, Seller shall cause the trustee of the Seller 401(k) Plan to transfer assets equal in value to the amount credited to each such Transferred Employee’s account under the Seller 401(k) Plan to the trustee (trust maintained under the “Purchasers’ Trustee”) of the Purchasers’ Opco 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion . Such transferred assets shall be accounted for under Section 6.2(d). The amount to be in cash or other property as determined by Seller with the consent of Opco (except the transferred assets shall not also include the value of the account any promissory notes evidencing outstanding loan balances of Transferred Employees and shall be subject to any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected qualified domestic relations order pursuant to receive a distribution (including a direct rollover described in Section 401(a)(31414(p) of the Code) from the BOC 401(k) Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers and shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party be transferred in accordance with Article IX against any Losses incurred by it that are attributable to the failure Section 414(l) of the Purchasers’ 401(k) Plan Code. Prior to, and trust to qualify under as a condition of, any transfer of assets, Seller and Opco shall provide the other with satisfactory evidence that its plan is tax-qualified within the meaning of Section 401(a) of the Code. SimilarlyAs of the transfer date, the Opco 401(k) Plan shall have sole liability for the payment of benefits accrued by Transferred Employees under the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust transferred in respect of such Transferred Employees and neither the Seller 401(k) Plan nor the Seller or its Affiliates shall have any obligation to qualify under Section 401(aOpco or with respect to employees of Opco with respect thereto (except to the extent Seller has made a mistake in the calculation and transfer of assets). If Seller determines in its sole discretion to make a profit sharing contribution to the Seller 401(k) Plan for the 2009 plan year on behalf of employees of Seller, Seller will make a profit sharing contribution to the Seller 401(k) Plan for each Transferred Employee who (i) is employed by Seller as of the Codeapplicable Transfer Date, (ii) is eligible according to the terms of Seller 401(k) Plan, and (iii) remains continuously employed by Seller and Opco (and their respective Affiliates) through December 31, 2009, based on his or her eligible compensation earned from Seller for the period from January 1, 2009 through the applicable Transfer Date. As soon as practicable following the date of such contribution, Seller shall effectuate a trust-to-trust transfer of the account balances of Transferred Employees resulting from such profit sharing contribution from the Seller 401(k) Plan to the Opco 401(k) Plan. Seller and Opco shall cooperate with each other (and cause the trustees of the Seller 401(k) Plan and the Opco 401(k) Plan to cooperate with each other) to effectuate the transfers of assets to the Opco 401(k) Plan.

401(k) Plan. The Seller and As soon as administratively possible, Buyer shall, or shall cause one of its Affiliates (including, following the Purchasers shall coClosing, the Business Companies) to, permit each Continuing Employee that is eligible to participate in a tax-operate to take whatever steps are necessary to effect qualified defined contribution plans with a cash or deferred feature within the spinoff and transfer, as promptly as practicable after the Closing Date, by the trustee (the “BOC Trustee”meaning of Section 401(k) of the BOC 401(k) Plan to the trustee Code (the “Purchasers’ Trustee”) of the Purchasers’ 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for and a related trust exempt from tax under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31501(a) of the Code) from maintained by Buyer or its Affiliates (the BOC “Buyer 401(k) Plan prior Plan”), subject to the date terms and conditions of transfer to the Purchasers’ such Buyer 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable Each Continuing Employee participating in a Parent 401(k) Plan immediately prior to the assets so transferred. Prior Closing shall be eligible to such transfer, each Employee shall have become a participant in the same rights under the BOC corresponding Buyer 401(k) Plan as an active employee of the Closing Date, and each Continuing Employee who participates would have become eligible to participate in the Parent 401(k) Plan shall be eligible to participate in the Buyer 401(k) Plan at the time such planContinuing Employee would have become eligible to participate in the Parent 401(k) Plan. Buyer agrees to use reasonable best efforts to cause the Buyer 401(k) Plan to allow each Continuing Employee to make a “rollover” to the Buyer 401(k) Plan of the account balances, other than rights including promissory notes evidencing any outstanding loans, of such Continuing Employee under the Parent 401(k) Plan in which such Continuing Employee participated prior to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party the Closing if such rollover is elected in accordance with Article IX against any Losses incurred applicable Law by it that are attributable to such Continuing Employee, in each case in the failure most tax-efficient and administratively efficient manner (and without such Continuing Employee incurring penalties in connection with such rollover). The rollovers described herein shall comply with applicable Law and the terms and conditions of the Purchasers’ Parent 401(k) Plan and trust to qualify under Section 401(a) of the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC Buyer 401(k) Plan Plan, and trust to qualify each party shall make all filings and take any actions required of such party under Section 401(a) of the Codeapplicable Law in connection therewith.

401(k) Plan. The Seller and the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, as promptly As soon as practicable after the Closing DateClosing, Seller shall cause the trustee of the 401(k) plan maintained by Seller (the “Seller Plan”) to transfer to the trustee of the retirement plan established by Buyer (or MSI or ▇▇▇▇ Marketing, as the case may be) that contains a cash or deferred arrangement under Section 401(k) of the Internal Revenue Code of 1986, as amended (the “Code”) and is designated for the benefit of the Continuing Employees (the “New Plan”), an amount, in-kind (other than amounts invested in the Grandfathered HHG Stock Fund (as such term is defined in the Seller Plan) which shall be liquidated by the trustee of the Seller Plan following the Closing in a time and manner consistent with the requirements of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and other applicable law), equal to the total account balances of the Continuing Employees, including promissory notes evidencing any outstanding loans of the Continuing Employees and actual investment earnings or losses through the date of transfer, held under the Seller Plan for the Continuing Employees, except for amounts as to which withdrawal requests have been duly submitted by such employees prior to such transfer and which Seller shall cause to be paid by the Seller Plan to the Continuing Employees in accordance with the Code, ERISA and the terms of the Seller Plan (the “BOC TrusteeContinuing Employee Account Balances”). In no event shall the Continuing Employee Account Balances be less than the amount required under Section 414(l) of the BOC 401(kCode and the regulations thereunder and such transfer shall be completed in accordance with the requirements of ERISA, as amended by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. The transfer of the Continuing Employee Account Balances shall be accomplished in a manner designed to avoid any liquidation of the accounts of the Continuing Employees (except as otherwise provided above) and to transfer the investments in the Schwab mutual funds or other investment vehicles (collectively, the “Schwab Investments”) in accordance with the elections of the Continuing Employees to the same Schwab Investments held under the New Plan. Seller and Buyer shall provide each other with such records and documentation as they may reasonably request and shall cooperate with each other to effectuate the transfer of the Continuing Employee Account Balances from the Seller Plan to the trustee (the “Purchasers’ Trustee”) of the Purchasers’ 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC 401(k) New Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure of the Purchasers’ 401(k) Plan terms set forth herein and trust to qualify under Section 401(a) of the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the Codeall applicable laws.

401(k) Plan. The Effective not later than the termination of the Continued Employment Term, Purchaser shall have in effect one or more defined contribution plans that include a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (and a related trust exempt from Tax under Section 501(a) of the Code) (as applicable, the “Purchaser 401(k) Plan”). Purchaser shall provide that each Transferred Employee participating in a Seller and Benefit Plan that is a defined contribution plan that includes a qualified cash or deferred arrangement within the Purchasers shall co-operate to take whatever steps are necessary to effect meaning of Section 401(k) of the spinoff and transfer, as promptly as practicable after the Closing Date, by the trustee Code (the “BOC TrusteeSeller 401(k) Plan”) immediately prior to the applicable Transfer Date shall become a participant in the corresponding Purchaser 401(k) Plan as of or as soon as practicable following such Transfer Date. Purchaser agrees to cause the Purchaser 401(k) Plan to allow each Transferred Employee to make a “direct rollover” to the Purchaser 401(k) Plan of the BOC account balances of such Transferred Employee (including promissory notes evidencing any outstanding loans) under the Seller 401(k) Plan in which such Transferred Employee participated prior to the applicable Transfer Date if the Seller 401(k) Plan Permits such a direct rollover and if such direct rollover is elected in accordance with applicable Law by such Transferred Employee. The rollovers described herein shall comply with applicable Law, and each Party shall make all filings and take any actions required of such Party under applicable Law in connection therewith. Following such transfer of account balances, Seller shall have no Liability for any costs, expenses or damages that may result from any claim for any benefit alleged to be payable under the Seller 401(k) Plan with respect to Transferred Employees and their beneficiaries who have transferred their account balances from the Seller 401(k) Plan to the trustee (the “Purchasers’ Trustee”) of the Purchasers’ Purchaser 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in connection with the transactions contemplated herein and who became eligible for and elected to receive a distribution (including a direct rollover described in Section 401(a)(31) of the Code) from the BOC 401(k) Plan prior to the date of transfer to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, each Employee shall have the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure of the Purchasers’ 401(k) Plan and trust to qualify under Section 401(a) of the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the Code.

401(k) Plan. The Seller and the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, as promptly As soon as practicable after following the Closing Date, by Purchaser shall, or shall cause the trustee Company to, make available to Transferred Employees a defined contribution plan that includes a cash or deferred feature that satisfies the requirements of section 401(k) of the Code (the “BOC TrusteePurchaser’s 401(k) Plan”) ). Effective as of the BOC Closing Date, Transferred Employees who are participants in the Seller’s 401(k) Plan shall have a fully vested and nonforfeitable interest in their respective account balances thereunder and shall be entitled to a distribution of their account balances under the trustee (the “Purchasers’ Trustee”) of the Purchasers’ Seller’s 401(k) Plan, of cash equal to the account balance (as of the day of the transfer) of each Employee in the BOC 401(k) Plan, other than the portion of such account balance representing Participant Promissory Notes, which portion shall be accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Transferred Employees whose employment terminated other than in connection with the transactions contemplated herein and who became receive an eligible for and elected to receive a rollover distribution (including a direct rollover described in Section 401(a)(31within the meaning of section 402(f)(2) of the Code) which constitutes a direct rollover distribution within the meaning of section 401(a)(31) of the Code and regulations thereunder from the BOC Seller’s 401(k) Plan prior shall, subject to the date provisions of transfer section 402 of the Code and the terms of the Purchaser’s 401(k) Plan, be permitted to make a rollover contribution to the Purchasers’ Purchaser’s 401(k) Plan. The Purchasers shall have full responsibility for payment of To the benefits attributable extent that, pursuant to the assets so transferred. Prior foregoing provisions of this Section 14.4, a Transferred Employee is eligible to such transfer, each Employee shall have make a rollover contribution of a direct rollover distribution (within the same rights under the BOC 401(k) Plan as an active employee who participates in such plan, other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure meaning of the Purchasers’ 401(k) Plan and trust to qualify under Section 401(asection 401(a)(31) of the Code. Similarly, Code and the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable regulations thereunder) to the failure Purchaser’s 401(k) Plan, such rollover contribution may include promissory notes for loans made to such Transferred Employee under the terms of the BOC Seller’s 401(k) Plan and trust to qualify under Section 401(a) of the CodePlan.