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 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 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 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 Xxxx 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 Xxxxxxxx-Xxxxx 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 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 If Buyer or a Buyer Corporation maintains or establishes 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 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 Code (“Buyer’s 401(k) Plan”), Buyer or such Buyer Corporation shall (i) permit each Transferred Employee participating in a Seller Benefit Plan that is a defined contribution plan with a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (“Seller’s 401(k) Plan”) to effect, and Buyer or a Buyer Corporation agrees to cause Buyer’s 401(k) Plan to accept, in accordance with applicable Law, a “direct rollover” (within the trustee (the “Purchasers’ Trustee”) meaning 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 of his or her account balances (including earnings thereon through the date of transfer and promissory notes evidencing all outstanding loans) in the form of cash (other than such promissory notes or loans, which shall be transferred in kind) under Seller’s 401(k) Plan if such rollover to Buyer’s 401(k) Plan is elected in accordance with applicable Law by such Transferred Employee, (ii) at Buyer’s request, Seller shall cause the Purchasers’ trustees of Seller’s 401(k) Plan to transfer in the form of cash, in accordance with 414(l) of the Code, Treasury Regulation Section 1.414(l)-1 and Section 208 of ERISA, the full account balances (including earnings thereon through the date of transfer) of each Transferred Employee, subject, in the case of each of clauses (i) and (ii), to each of Seller’s or the Asset Selling Corporation’s and Buyer’s reasonable satisfaction that Seller’s 401(k) Plan or Buyer’s 401(k) Plan. The Purchasers shall have full responsibility , as applicable, is in compliance with all applicable Laws and that such plan continues to satisfy the requirements 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 a qualified plan under Section 401(a) of the Code. Similarly, Code and that the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it trust that are attributable to the failure forms a part of the BOC 401(k) Plan and trust to qualify such plan is exempt from tax under Section 401(a501(a) of the Code. Upon completion of a direct rollover of a Transferred Employee’s account balances, as described in this Section 8.11, Buyer or a Buyer Corporation and Buyer’s 401(k) Plan shall be fully responsible for all benefits relating to past service of such Transferred Employee and none of Seller, the Asset Selling Corporations and Seller’s 401(k) Plan shall have any liability whatsoever with respect to such benefits. Notwithstanding Section 7.2(b)(iv), Seller shall be permitted to amend Seller’s 401(k) Plan as necessary in order to permit the actions contemplated by this Section 8.11.

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.