Common use of 401(k) Plans Clause in Contracts

401(k) Plans. (a) Each Transferred Employee participating in a defined contribution plan of Contributor (as applicable, a “Contributor 401(k) Plan”) as of immediately prior to the Closing shall become eligible to participate without any waiting period as of the Closing in a defined contribution plan of NewU that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (“NewU 401(k) Plan”). (b) Contributor agrees to take, or cause to be taken, actions necessary to permit each Transferred Employee to effect a “direct rollover” (within the meaning of Section 401(a)(31) of the Code) of his or her account balances under a Seller 401(k) Plan within thirty (30) days following the Closing, if such rollover is elected in accordance with applicable Law by such employee. Without limiting the generality of the foregoing, and provided that Contributor is reasonably satisfied, consistent with the regulations under Section 401(a)(31) of the Code, that NewU 401(k) Plan meets the requirements for qualification under Section 401(a) of the Code, Contributor may take such actions necessary to provide that one or more Transferred Employees may elect to effect, and, provided that NewU is reasonably satisfied, consistent with the regulations under Section 401(a)(31) of the Code, that the applicable Contributor 401(k) Plan meets the requirements for qualification under Section 401(a) of the Code, NewU agrees to cause NewU 401(k) Plan to accept, a “direct rollover” to NewU 401(k) Plan of such employee’s account balances (including promissory notes evidencing all outstanding loans) under the Contributor 401(k) Plan if such rollover is elected in accordance with applicable Law by such employee. Upon completion of a direct rollover of an Transferred Employee’s account balances, as described in this Section 7.3, NewU and NewU 401(k) Plan shall be fully responsible for all benefits relating to past service of such Transferred Employee and none of Contributor and the Contributor 401(k) Plan shall have any Liability whatsoever with respect to such benefits.

401(k) Plans. participated in the Premium Beverage 401(k) Plan (athe "PREMIUM 401(K) Each Transferred Employee participating PLAN") -------------------- shall be fully vested in their account balances. (i) Prior to the Closing Date, the Seller shall adopt, or shall cause a defined contribution plan V/U Designee to adopt, and become the sponsoring employer of Contributor The Seagram 401(k) Plan (as applicablethe "SEAGRAM 401(K) PLAN") (and none of the Buyers, a “Contributor Successor --------------------- Buyers or any of their Affiliates shall have any liability in respect of such plan). As of the Closing Date (and subject to Applicable Law), all Assumed Employees shall be fully vested in their account balances in the Seagram 401(k) Plan”) as of immediately prior to , and the Closing Seller shall become eligible to participate without any waiting period as cause the trustee of the Closing in a defined contribution plan of NewU that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (“NewU 401(k) Plan”). (b) Contributor agrees to take, or cause to be taken, actions necessary to permit each Transferred Employee to effect a “direct rollover” (within the meaning of Section 401(a)(31) of the Code) of his or her account balances under a Seller Seagram 401(k) Plan within thirty (30) days following the Closingto segregate, if such rollover is elected in accordance with applicable Law by such employee. Without limiting the generality of the foregoing, and provided that Contributor is reasonably satisfied, consistent with the regulations spin-off provisions set forth under Section 401(a)(31414(l) of the Code, that NewU the assets of the Seagram 401(k) Plan meets representing the requirements full account balances of Assumed Employees for qualification under Section 401(a) all periods of participation through the Code, Contributor may take such actions necessary to provide that one or more Transferred Employees may elect to effect, and, provided that NewU is reasonably satisfied, consistent Closing Date in accordance with the regulations under terms of Section 401(a)(31) 8.6(b)(ii). As soon as practicable after the Closing Date, the Seller and/or such V/U Designee shall make any and all filings and submissions to the appropriate Governmental Entities arising in connection with such segregation and transfer of assets. Prior to the CodeClosing Date, that the applicable Contributor Seller shall cause to be made all necessary amendments to the Seagram 401(k) Plan meets and its related trust agreement to provide for such segregation of assets and the requirements for qualification transfer of assets as described below. The manner in which the account balances of each such Assumed Employee participant under Section 401(a) of the Code, NewU agrees to cause NewU The Seagram 401(k) Plan to accept, a “direct rollover” to NewU 401(k) Plan of such employee’s account balances (including promissory notes evidencing all outstanding loans) under the Contributor 401(k) Plan if such rollover is elected in accordance with applicable Law are invested shall not be affected by such employeesegregation of assets. Upon completion of a direct rollover of an Transferred Employee’s account balances, as described in this Section 7.3, NewU and NewU The Seagram 401(k) Plan shall be fully responsible amended to provide that contributions thereto with respect to Assumed Employees for periods after the Closing Date shall cease as of the Closing Date. (ii) As soon as practicable after the Closing Date, the Buyers shall establish or designate a defined contribution plan for the benefit of Assumed Employees (the "SUCCESSOR DEFINED CONTRIBUTION PLAN"), to take all benefits relating necessary -------------------------------------- action, if any, to past service qualify such plan under the applicable provisions of such Transferred Employee the Code, and none to make any and all filings and submissions to the appropriate Governmental Entities required to be made by it in connection with the transfer of Contributor and assets described below. As soon as practicable following the Contributor earlier of the delivery to the Seller of a favorable determination letter from the Internal Revenue Service regarding the qualified status of the Successor Defined Contribution Plan as amended to date of transfer, or the delivery of an opinion of counsel to Buyers reasonably satisfactory to the Seller that the terms of the Successor Defined Contribution Plan satisfy the applicable requirements of Section 401 of the Code (the "401(K) TRANSFER DATE"), the Seller shall cause the -------------------- trustee of the Seagram 401(k) Plan shall have any Liability whatsoever to transfer in the form of cash or, at the Buyer's option, with the consent of the Seller, in kind (except with respect to loans to Assumed Employees, which shall be transferred in kind) the full account balances (inclusive of such benefitsloans) of all Assumed Employees, which account balances shall have been credited with appropriate earnings and contributions, if any, attributable to the period ending on the close of business of the day preceding the 401(k) Transfer Date, reduced by any benefit or withdrawal payments in respect of Assumed Employees prior to the 401(k) Transfer Date, to the trustee of the Successor Defined Contribution Plan. (iii) In consideration of the transfer of assets hereunder, the Buyers shall, effective as of the 401(k) Transfer Date, assume all of the obligations of Seller and any of its Affiliates, and the Buyers shall cause the Successor Defined Contribution Plan, effective as of the 401(k) Transfer Date, to assume all of the obligations of the Seagram 401(k) Plan, in each case, in respect of account balances of Assumed Employees under the Seagram 401(k) Plan (exclusive of any portion of such account balances which are paid or otherwise withdrawn prior to the 401(k) Transfer Date). The Buyers shall not assume any other obligations or liabilities arising under or attributable to the Seagram 401(k) Plan.

401(k) Plans. (ai) Each Transferred Employee participating in a defined contribution plan Upon the request of Contributor Acquiror, effective as of the day immediately preceding the Closing and contingent upon the Closing, the Company or its Subsidiaries (as applicable, a “Contributor 401(k) Plan”shall (i) take any and all necessary actions to terminate any Company Benefit Plans that are intended to qualify as of immediately prior to the Closing shall become eligible to participate without any waiting period as of the Closing in a defined contribution plan of NewU that includes a qualified cash or deferred arrangement within the meaning of under Section 401(k) of the Code (the “NewU 401(k) Plans”); (ii) provide Acquiror with a copy of any and all resolutions or other corporate action (the form and substance of which shall be subject to prior review and comment by Acquiror, which comments shall be considered by the Company in good faith) evidencing that any such plans will be terminated effective as of no later than the day immediately preceding the Closing; and (iii) prior to and conditioned upon termination of any such plans, authorize through corporate resolution any and all necessary amendments to the plan documents to effect such terminations, fully vest affected participants, and comply with all requirements of applicable Law as of the effective date of such terminations; provided, that the Company and its Subsidiaries shall not take any further steps to effect any such plan terminations prior to the Closing. (ii) Acquiror shall designate a tax-qualified defined contribution retirement plan of Acquiror or its Affiliate with a qualified cash or deferred arrangement under Section 401(k) of the Code (the “Acquiror 401(k) Plan”). (b) Contributor agrees that will cover Affected Employees on and after the Closing Date. Acquiror shall cause the Acquiror 401(k) Plan to take, or cause to be taken, actions necessary to permit each Transferred Employee to effect a accept direct rollovers elected by Affected Employees from the 401(k) Plans that consist of “direct rollovereligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) and promissory notes evidencing participant loans. The parties hereto shall cooperate in good faith to work with the recordkeepers of his or her account balances under a Seller the 401(k) Plan within thirty (30) days following Plans and the Closing, if such rollover is elected in accordance with applicable Law by such employee. Without limiting the generality of the foregoing, and provided that Contributor is reasonably satisfied, consistent with the regulations under Section 401(a)(31) of the Code, that NewU 401(k) Plan meets the requirements for qualification under Section 401(a) of the Code, Contributor may take such actions necessary to provide that one or more Transferred Employees may elect to effect, and, provided that NewU is reasonably satisfied, consistent with the regulations under Section 401(a)(31) of the Code, that the applicable Contributor 401(k) Plan meets the requirements for qualification under Section 401(a) of the Code, NewU agrees to cause NewU Acquiror 401(k) Plan to accept, a “direct rollover” to NewU 401(k) Plan complete the rollovers of such employee’s account balances (including promissory notes evidencing all outstanding loans) under the Contributor 401(k) Plan if participant loans before such rollover is elected in accordance with applicable Law by such employee. Upon completion of a direct rollover of an Transferred Employee’s account balances, as described in this Section 7.3, NewU and NewU 401(k) Plan shall be fully responsible for all benefits relating to past service of such Transferred Employee and none of Contributor and the Contributor 401(k) Plan shall have any Liability whatsoever with respect to such benefitsloans default.

401(k) Plans. (ai) Each Transferred Employee participating in a defined contribution plan of Contributor Prior to or on the Closing Date, Seller shall timely adopt all amendments to the Seller 401(k) Plan (as applicabledefined below) required by law to be adopted prior to the Closing Date. (ii) Effective as of the Closing Date, a (A) the Seller shall cause the account balance of each Employee to become fully vested and (B) the participation of each Employee in the Xxxxxx Industries 401(k) Plan (the “Contributor Seller 401(k) Plan”) shall cease. Each Employee (including any “alternate payee” as of immediately prior to the Closing shall become eligible to participate without any waiting period as described in Section 414(p) of the Closing Code) shall have the option to (x) retain the Employee’s account balance under the Seller 401(k) Plan (provided that such Employee’s account balance is in a defined contribution plan excess of NewU that includes a qualified cash $5,000) or deferred arrangement within (y) make an elective rollover of the meaning balance of the Employee’s account, including any notes evidencing loans under the Seller 401(k) Plan, in accordance with Section 401(k) of the Code and the regulations promulgated thereunder, to the 401(k) Plan established or to be established by Buyer (the “NewU Buyer 401(k) Plan”). (biii) Contributor agrees If any Employee chooses to takemake a rollover election, or the Seller shall cause to be taken, actions necessary to permit each Transferred Employee to effect a “direct rollover” (within the meaning of Section 401(a)(31) trustee of the Code) of his or her account balances under a Seller 401(k) Plan within thirty to transfer in cash and/or kind (30) days following including any notes evidencing loans under the Closing, if such rollover is elected in accordance with applicable Law by such employee. Without limiting the generality of the foregoing, and provided that Contributor is reasonably satisfied, consistent with the regulations under Section 401(a)(31) of the Code, that NewU Seller 401(k) Plan meets Plan) the requirements for qualification under Section 401(a) of the Code, Contributor may take such actions necessary to provide that one or more Transferred Employees may elect to effect, and, provided that NewU is reasonably satisfied, consistent with the regulations under Section 401(a)(31) of the Code, that the applicable Contributor 401(k) Plan meets the requirements for qualification under Section 401(a) of the Code, NewU agrees to cause NewU 401(k) Plan to accept, a “direct rollover” to NewU 401(k) Plan of such employee’s full account balances (including promissory notes evidencing all outstanding loans) under the Contributor 401(k) Plan if such rollover is elected in accordance with applicable Law by such employee. Upon completion of a direct rollover of an Transferred Employee’s account balances, as described in this Section 7.3, NewU and NewU 401(k) Plan shall be fully responsible for all benefits relating to past service of such Transferred Employee and none of Contributor and the Contributor 401(k) Plan shall have any Liability whatsoever with respect to such benefitsEmployee under the Seller 401(k) Plan (which account balances will have been credited with appropriate earnings and reduced by any necessary benefit or withdrawal payments to or in respect of such Employee as of the Closing Date and with respect to the period from the Closing Date to the date of such transfer) to the appropriate trustee designated by the Buyer or its affiliate under the trust agreement forming a part of the Buyer 401(k) Plan as soon as reasonably practicable after such election. The Buyer shall take all actions reasonably necessary to permit the Employees to roll over any loan balances outstanding under the Seller 401(k) Plan as of the Closing Date and to otherwise effectuate the asset transfer described in the preceding sentence, including making (or causing to be made) all filings and submissions to the appropriate Governmental Authorities which are required to be made by the trustee or sponsor of the Buyer 401(k) Plan in connection with any such rollovers.