Common use of ESOP Matters Clause in Contracts

ESOP Matters. (a) Until the Closing or the earlier termination of this Agreement, neither the Company nor the ESOP Trustee shall make or agree to make any distributions or other payments to or from the ESOP or purchase any capital stock from the ESOP or from participants or former participants or beneficiaries, other than (i) such distributions from, or other payments to or from, the ESOP, (ii) purchases of capital stock from participants or former participants or beneficiaries, as are required by the terms of the ESOP or (iii) ratable distributions to the ESOP made concurrently with distributions to the Company’s shareholders in order to pay estimated income Taxes. (b) The Company shall, immediately prior to the Closing, cause the ESOP to be amended, effective as of, and contingent upon, the occurrence of, the Closing Date, in a form reasonably acceptable to Buyer (the “ESOP Amendment”), which ESOP Amendment, from and after the Closing Date, shall provide that (i) the ESOP shall be “frozen” as of the Closing such that no new participants shall enter the plan, no further vesting credit shall accrue, and no additional contributions shall be made to the ESOP; (ii) all ESOP participants shall become immediately and 100% vested in their accounts, (iii) all proceeds from the sale of the ESOP’s suspense account shares shall be properly allocated in a manner permissible by the IRS and for the exclusive benefit of participants in the ESOP, (iv) the ESOP shall be terminated and the entire balance of an ESOP participant’s account shall be distributable in cash or securities as soon as administratively feasible after receipt of the IRS Approval or such earlier date as the Buyer may determine, (v) a committee as determined or appointed by the Buyer (the “ESOP Administrative Committee”) shall be responsible for administering the ESOP during the period following the Closing until all of its assets are fully distributed in complete termination of the ESOP (the “ESOP Termination Date”), and (vi) all costs of the administration of the ESOP during such period which may be permissibly paid from the ESOP’s trust assets shall be borne by the ESOP, and shall include such special allocation, valuation and accounting provisions necessary to prudently address administrative issues related to benefit accrual activity for periods preceding the Closing. The ESOP Trust agreement shall, immediately prior to the Closing, be amended, effective as of the Closing Date, to reflect the planned termination of the ESOP upon the ESOP Termination Date. (c) Promptly following the Closing Date, the ESOP Administrative Committee shall submit an application to the IRS requesting a favorable determination with respect to the ESOP Amendment and proposed termination of the ESOP (the “IRS Approval”). If IRS Approval cannot be obtained without modification of the ESOP Amendment, no distribution shall be made from the ESOP until such modifications are made to the ESOP Amendment as may be required by the IRS in order to obtain the IRS Approval. (d) Effective as of the Closing Date, or at such time as the Buyer may determine, the cash accounts held in the ESOP (net of any administrative expense funds or such other amounts that the fiduciaries deem to be prudent to retain in the ESOP pending its termination) and all rights that the ESOP shall have to proceeds from the Transaction that may be payable from the Escrow Amount or the Secondary Escrow Amount in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, may be transferred in a “spin off” from the ESOP, pursuant to Section 414(l) of the Code and Treasury Regulation Section 1.414(l)-1 and ERISA Section 208 into a new profit sharing plan (the “PSP”), which, if established, shall be a frozen plan, shall contain such distribution restrictions as maintained under the ESOP and which shall remain in place until the Escrow Amount and the Secondary Escrow Amount are completely disbursed to the ESOP or PSP, as may be applicable, and the other Sellers in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, or until such earlier or later time as the Buyer determines. (e) The Buyer may determine, in which event Shareholder Representative shall cooperate and assist the Buyer, to cause the ESOP and PSP, if established, to make available a diverse menu of investments for participants in one or both plans, following the Closing and prior to the termination of the ESOP and the termination or other disposition of the PSP. (f) All of the assets of the ESOP received in connection with the Closing (including an amount that is reasonably necessary to pay for the administrative expenses of the ESOP), net of the assets which may be transferred to the PSP, will be allocated to the accounts of the ESOP participants, beneficiaries and alternate payees no later than one hundred and twenty (120) days following the Closing Date, and, with respect to any Escrow Amount or Secondary Escrow Amount, to the accounts of the ESOP or PSP participants, beneficiaries and alternate payees, as may be applicable, within thirty (30) days following the receipt by the plan of any portion of the Escrow Amount or the Secondary Escrow Amount paid in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount. As soon as administratively feasible following the final distribution to the ESOP or PSP, as may be applicable, and the other Sellers of the entire remaining balance of the Escrow Amount or Secondary Escrow Amount in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, the ESOP or PSP, as may be applicable, will make a final allocation to all affected participants, beneficiaries and alternate payees. (g) The ESOP Administrative Committee will direct the ESOP Trustee as to the ESOP Trustee’s position regarding claims by the Buyer against the Escrow Amount. The ESOP Trustee will follow such instructions unless contrary to Law.

ESOP Matters. (ai) Until The ESOP has been administered according to its terms and has been established, maintained and administered in all material respects in accordance with the Code, ERISA and other applicable Laws, including, but not limited to, the requirements of Sections 401(a), 409 and 4975 of the Code and the regulations promulgated thereunder. The ESOP constitutes an “employee stock ownership plan” (as such term is defined in Section 4975(e)(7) of the Code and Section 407(d)(6) of ERISA). No corrections to the administration of the ESOP have been made or are required, and there are no voluntary correction requests in process with the U.S. Department of Labor, the IRS or any other Governmental Entity. (ii) The shares of Company common stock held by the ESOP constitute and have at all times been “employer securities,” as defined in Section 409(l) of the Code, and “qualifying employer securities,” as defined in Section 4975(e)(8) of the Code and Section 407(d)(5) of ERISA. The ESOP trustee has commissioned an appraisal of the shares of Company common stock held by the ESOP by a qualified independent appraiser (as such term is used in Section 401(a)(28)(C) of the Code) for each plan year of the ESOP since its inception and the ESOP has utilized each such appraisal for all administrative purposes required under the terms of the ESOP, ERISA and the Code. (iii) The ESOP has no existing indebtedness related to its prior acquisition of the shares of Company common stock (or any other employer securities). As of the Closing or Date, without giving effect to the earlier termination of transactions contemplated by this Agreement, neither the Company nor the ESOP Trustee shall make or agree is not obligated to make any distributions or other payments to or from the ESOP or purchase any capital stock from the ESOP or from participants or former participants or beneficiaries, other than (i) such distributions from, or other payments to or from, pay the ESOP, (ii) purchases the ESOP trust, or any of capital stock from the ESOP participants or former participants or beneficiaries, any amount other than as are required by otherwise provided under the terms of the ESOP or (iii) ratable distributions other than, in the case of ESOP participants to the ESOP made concurrently with distributions extent permitted pursuant to the Company’s shareholders terms of the ESOP, compensation and expense reimbursements in order to pay estimated income Taxesthe ordinary course of business. (biv) The Company shall, immediately prior to No fiduciary (within the Closing, cause meaning of ERISA) of the ESOP is indemnified by, or has any rights to be amendedindemnity from, effective as of, and contingent upon, the occurrence of, the Closing Date, in a form reasonably acceptable to Buyer (the “ESOP Amendment”), which ESOP Amendment, from and after the Closing Date, shall provide that (i) any Person or the ESOP shall be “frozen” for any fiduciary liability he, she or it may incur or may have incurred as of the Closing such that no new participants shall enter the plan, no further vesting credit shall accrue, and no additional contributions shall be made to the ESOP; (ii) all ESOP participants shall become immediately and 100% vested in their accounts, (iii) all proceeds from the sale a fiduciary of the ESOP’s suspense account shares shall be properly allocated in a manner permissible by the IRS and for the exclusive benefit of participants in the ESOP, (iv) the ESOP shall be terminated and the entire balance of an ESOP participant’s account shall be distributable in cash or securities as soon as administratively feasible after receipt of the IRS Approval or such earlier date as the Buyer may determine, (v) a committee as determined or appointed by the Buyer (the “ESOP Administrative Committee”) shall be responsible for administering the ESOP during the period following the Closing until all of its assets are fully distributed in complete termination of the ESOP (the “ESOP Termination Date”), and (vi) all costs of the administration of the ESOP during such period which may be permissibly paid from the ESOP’s trust assets shall be borne by the ESOP, and shall include such special allocation, valuation and accounting provisions necessary to prudently address administrative issues related to benefit accrual activity for periods preceding the Closing. The ESOP Trust agreement shall, immediately prior to the Closing, be amended, effective as of the Closing Date, to reflect the planned termination of trustee has complied in all material respects with its obligations under the ESOP upon and under ERISA and the ESOP Termination Date. (c) Promptly following the Closing Date, the ESOP Administrative Committee shall submit an application to the IRS requesting a favorable determination Code with respect to the ESOP Amendment and proposed termination of the ESOP (the “IRS Approval”). If IRS Approval cannot be obtained without modification of the ESOP Amendment, no distribution shall be made from the ESOP until such modifications are made to the ESOP Amendment as may be required by the IRS in order to obtain the IRS ApprovalESOP. (d) Effective as of the Closing Date, or at such time as the Buyer may determine, the cash accounts held in the ESOP (net of any administrative expense funds or such other amounts that the fiduciaries deem to be prudent to retain in the ESOP pending its termination) and all rights that the ESOP shall have to proceeds from the Transaction that may be payable from the Escrow Amount or the Secondary Escrow Amount in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, may be transferred in a “spin off” from the ESOP, pursuant to Section 414(l) of the Code and Treasury Regulation Section 1.414(l)-1 and ERISA Section 208 into a new profit sharing plan (the “PSP”), which, if established, shall be a frozen plan, shall contain such distribution restrictions as maintained under the ESOP and which shall remain in place until the Escrow Amount and the Secondary Escrow Amount are completely disbursed to the ESOP or PSP, as may be applicable, and the other Sellers in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, or until such earlier or later time as the Buyer determines. (e) The Buyer may determine, in which event Shareholder Representative shall cooperate and assist the Buyer, to cause the ESOP and PSP, if established, to make available a diverse menu of investments for participants in one or both plans, following the Closing and prior to the termination of the ESOP and the termination or other disposition of the PSP. (f) All of the assets of the ESOP received in connection with the Closing (including an amount that is reasonably necessary to pay for the administrative expenses of the ESOP), net of the assets which may be transferred to the PSP, will be allocated to the accounts of the ESOP participants, beneficiaries and alternate payees no later than one hundred and twenty (120) days following the Closing Date, and, with respect to any Escrow Amount or Secondary Escrow Amount, to the accounts of the ESOP or PSP participants, beneficiaries and alternate payees, as may be applicable, within thirty (30) days following the receipt by the plan of any portion of the Escrow Amount or the Secondary Escrow Amount paid in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount. As soon as administratively feasible following the final distribution to the ESOP or PSP, as may be applicable, and the other Sellers of the entire remaining balance of the Escrow Amount or Secondary Escrow Amount in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, the ESOP or PSP, as may be applicable, will make a final allocation to all affected participants, beneficiaries and alternate payees. (g) The ESOP Administrative Committee will direct the ESOP Trustee as to the ESOP Trustee’s position regarding claims by the Buyer against the Escrow Amount. The ESOP Trustee will follow such instructions unless contrary to Law.

ESOP Matters. (a) Until the Closing or the earlier termination As soon as practicable after notice of this Agreement, neither the Company nor the ESOP Trustee shall make or agree to make any distributions or other payments to or from the ESOP or purchase any capital stock from the ESOP or from participants or former participants or beneficiaries, other than (i) such distributions from, or other payments to or from, the ESOP, (ii) purchases of capital stock from participants or former participants or beneficiaries, as are required by the terms of the ESOP or (iii) ratable distributions to the ESOP made concurrently with distributions Meeting is delivered to the Company’s shareholders stockholders, the Company will request that the trustees of the ESOP and the 401(k) Plan take all necessary action required by the respective plan documents, and for the ESOP in order accordance with Section 409(e)(2) of the Code, to pay estimated income Taxesconduct a pass-through vote of the participants and beneficiaries to direct the respective trustee as to the manner in which the Company Common Stock and are allocated to the account of such participant or beneficiary are to be voted. In no event will Parent or the Company be entitled to receive any information identifying how any individual participant directed the trustees to vote the shares allocated to such participant’s account. The Company will further request the trustee of the ESOP and the 401(k) Plan to provide to Parent for review and comment, reasonably in advance of the pass-through votes, but in any event at least ten (10) business days prior to distribution thereof to the plan participants, all materials (including the information statement and any similar disclosure materials) prepared by the Company and approved by the plan trustees proposed to be disclosed to the participants in connection with the pass-through votes, and the Company shall incorporate any comments reasonably proposed by Parent thereto. and the plan trustees shall take all actions necessary to comply with voting requirements of the ESOP, the 401(k) Plan, the Code and applicable law for the required approvals of the consummation of the transactions contemplated by this Agreement in advance of the Company Meeting. (b) The Company shall, immediately prior Prior to the Closing, cause the ESOP to be amended, effective as of, and contingent uponEffective Time, the occurrence ofCompany shall amend the ESOP, the Closing Date, in a form as reasonably acceptable to Buyer Parent, to permanently discontinue contributions to and terminate the ESOP, contingent upon the occurrence of the Closing and effective as of the date immediately preceding the Closing Date (the “ESOP Amendment”), which . The ESOP Amendment, from and after the Closing Date, Amendment shall provide that (i) the accounts of all participants in the ESOP shall become fully vested upon termination of the ESOP, and that each share of Company Common Stock held in the ESOP shall be “frozen” as of converted into the Closing such that no new participants shall enter right to receive, without interest, the planMerger Consideration. Notwithstanding anything herein to the contrary, no further vesting credit shall accrue, the Company may continue to accrue and no additional make contributions shall be made to the ESOP; (ii) all ESOP participants shall become immediately , subject to applicable deduction and 100% vested in their accountsannual allocation limitations, (iii) all proceeds from the sale date of this Agreement through the termination date of the ESOP’s suspense account shares shall be properly allocated ESOP in a manner permissible by an amount sufficient to cover (but not to exceed) the IRS and for the exclusive benefit of participants loan payments which become due in the ESOP, (iv) ordinary course on the outstanding ESOP Loan to the ESOP shall be terminated and prior to the entire balance of an ESOP participant’s account shall be distributable in cash or securities as soon as administratively feasible after receipt of the IRS Approval or such earlier date as the Buyer may determine, (v) a committee as determined or appointed by the Buyer (the “ESOP Administrative Committee”) shall be responsible for administering the ESOP during the period following the Closing until all of its assets are fully distributed in complete termination of the ESOP (and, at the “ESOP Termination Date”), and (vi) all costs discretion of the administration Company, may make a pro-rated payment on the ESOP Loan for the plan year during with the Closing occurs through and including the end of the ESOP during such period which may be permissibly paid from the ESOP’s trust assets shall be borne by the ESOP, and shall include such special allocation, valuation and accounting provisions necessary to prudently address administrative issues related to benefit accrual activity for periods calendar month immediately preceding the Closing. The ESOP Trust agreement shall, immediately prior to the Closing, be amended, effective as of the Closing Date, to reflect the planned termination of the ESOP upon the ESOP Termination DateESOP. (c) Promptly To the extent not filed by the Company before the Closing Date, as soon as administratively practicable following the Closing Date, the ESOP Administrative Committee Parent shall submit an application to the IRS requesting a favorable determination with respect to the ESOP Amendment amendment and proposed termination of the ESOP (the “IRS ApprovalESOP Determination Letter”). If IRS Approval cannot be obtained without modification The ESOP Amendment shall provide that participants have the right to receive partial distributions of up to 50% of the ESOP Amendment, no distribution shall be made from the ESOP until such modifications are made account balances credited to the ESOP Amendment as may be required by the IRS in order to obtain the IRS Approval. (d) Effective participants as of the Closing Date, or at such time taking into account the Merger Consideration received by the ESOP, as soon as administratively practicable after the Buyer may determineClosing Date, with the cash accounts held in remaining portion to be distributed as soon as administratively practicable after receipt by Parent of the ESOP Determination Letter. (net d) Immediately prior to the Effective Time, a portion of any administrative expense funds or such other amounts the ESOP Unallocated Shares, having an aggregate value of outstanding balance of the ESOP Loan as of the Effective Time, shall be exchanged in satisfaction of the ESOP Loan. In the event that the fiduciaries deem to be prudent to retain in aggregate value of the ESOP pending its termination) and Unallocated Shares is less than outstanding balance of the ESOP Loan at the Effective Time, all rights that ESOP Unallocated Shares will be transferred to the Company in satisfaction of the ESOP Loan which shall be deemed to have been paid in full. All remaining shares of Company Common Stock owned by the ESOP shall have be eligible to proceeds from be converted into the Transaction that may be payable from right to receive the Escrow Amount or the Secondary Escrow Amount Merger Consideration pursuant to Article I and allocated in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion terms of the Escrow Amount or the Secondary Escrow Amount, may be transferred in a “spin off” from the ESOP, pursuant to Section 414(l) of the Code and Treasury Regulation Section 1.414(l)-1 and ERISA Section 208 into a new profit sharing plan (the “PSP”), which, if established, shall be a frozen plan, shall contain such distribution restrictions as maintained under the ESOP and which shall remain in place until the Escrow Amount and the Secondary Escrow Amount are completely disbursed to the ESOP or PSP, as may be applicable, and the other Sellers in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, or until such earlier or later time as the Buyer determinesAmendment. (e) The Buyer may determineFollowing the Closing, in which event Shareholder Representative shall cooperate all costs and assist expenses of the BuyerESOP, to cause including the ESOP Trustee’s fees and PSPthe legal, if establishedaccounting and recordkeeping (and including any fees and costs related to post-Closing audits and any liabilities imposed as a result thereof) and other administrative fees and expenses of the ESOP, to make available a diverse menu of investments for participants in one or both plans, following resulting from the Closing and prior to the termination liquidation of the ESOP and the termination or other disposition distribution of funds from the PSPESOP, will be paid by the ESOP to the extent permissible. (f) All of the assets of the ESOP received in connection with the Closing (including an amount that is reasonably necessary to pay for the administrative expenses of the ESOP), net of the assets which may be transferred to the PSP, will be allocated to the accounts of the ESOP participants, beneficiaries and alternate payees no later than one hundred and twenty (120) days following the Closing Date, and, with respect to any Escrow Amount or Secondary Escrow Amount, to the accounts of the ESOP or PSP participants, beneficiaries and alternate payees, as may be applicable, within thirty (30) days following the receipt by the plan of any portion of the Escrow Amount or the Secondary Escrow Amount paid in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount. As soon as administratively feasible practicable following the final distribution to receipt of the ESOP or PSPDetermination Letter, the Parent, in its capacity as may be applicableplan sponsor, shall cause the trustee of the ESOP to make, and the other Sellers trustee of the entire ESOP shall make, distributions from the ESOP until all remaining balance account balances of the Escrow Amount or Secondary Escrow Amount in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, ESOP participants and beneficiaries have been distributed and the ESOP or PSP, as may shall be applicable, will make a final allocation to all affected participants, beneficiaries and alternate payeesliquidated. (g) The ESOP Administrative Committee will direct the ESOP Trustee as to the ESOP Trustee’s position regarding claims by the Buyer against the Escrow Amount. The ESOP Trustee will follow such instructions unless contrary to Law.

ESOP Matters. (a) Until Not later than the Closing or the earlier termination of this AgreementClosing, neither the Company nor and Seller shall adopt, subject to the review and consent of the ESOP Trustee and Buyer (which consent shall make not be unreasonably withheld, conditioned or agree to make any distributions or other payments to or from the ESOP or purchase any capital stock from the ESOP or from participants or former participants or beneficiariesdelayed), other than (i) such distributions from, or other payments to or from, the ESOP, (ii) purchases of capital stock from participants or former participants or beneficiaries, as are required by the terms of the ESOP or (iii) ratable distributions an amendment to the ESOP made concurrently with distributions to the Company’s shareholders in order to pay estimated income Taxes. (b) The Company shall, immediately prior to the Closing, cause the ESOP to be amended, effective as of, and contingent upon, the occurrence of, the Closing Date, in a form reasonably acceptable to Buyer (the “ESOP Amendment”)) to provide that, which ESOP Amendmentsubject to the consummation of the Closing, from and effective at, immediately following or after the Closing Dateas may be applicable, shall provide that (i) Seller shall become the plan sponsor and have all the power and authority of the “Company” as defined in and for purposes of the ESOP with respect to periods thereafter (and without assuming any responsibility with respect to prior periods), (ii) the ESOP shall be “frozen” as a profit sharing plan (within the meaning of Section 401 of the Closing such that no new participants shall enter the plan, no further vesting credit shall accrueCode), and no additional contributions shall cease to be made to a stock bonus plan and an employee stock ownership plan (within the ESOP; (ii) all ESOP participants shall become immediately meaning of Sections 401 and 100% vested in their accounts4975 of the Code), (iii) all proceeds from the sale of the ESOP’s suspense account shares shall be properly allocated in a manner permissible by the IRS and for the exclusive benefit of participants in the ESOP, (iv) the ESOP shall be terminated and terminated; (iv) pursuant to the entire balance of an ESOP participant’s account shall be distributable in cash or securities as soon as administratively feasible after receipt termination of the ESOP, no further contributions will be made to the ESOP as of the Closing except for contributions that have been accrued on behalf of participants and beneficiaries prior to the Closing Date, or that are otherwise required by the IRS Approval or such earlier date as in connection with the Buyer may determineissuance of a favorable determination letter with respect to the termination of the ESOP, (v) a committee as determined or appointed by pursuant to the Buyer (the “ESOP Administrative Committee”) shall be responsible for administering the ESOP during the period following the Closing until all of its assets are fully distributed in complete termination of the ESOP, all ESOP participants whose account balances had not previously been distributed in full will be fully vested, (vi) no new participants will be admitted to the “ESOP Termination Date”)after the Closing, and (vivii) all costs such other changes as Seller deems appropriate, which may include, by way of example, provisions regarding the exercise of voting power with respect to the equity of Seller after the Closing and constraints on amendments to the ESOP or the replacement of the administration administrator or administrative committees of the ESOP during such period which may be permissibly paid from the ESOP’s trust assets shall be borne by the ESOP, and shall include such special allocation, valuation and accounting provisions necessary to prudently address administrative issues related to benefit accrual activity for periods preceding after the Closing. The ESOP Trust agreement shallAmendment shall further provide for full distribution of plan benefits in one or more payments as Seller, immediately prior to in consultation with the ESOP Trustee, may determine, with such distributions being completed as provided in Section 8.6.4(c). (b) Following the Closing, be amended, effective as of the Closing Date, to reflect the planned termination of Seller shall administer and operate the ESOP upon the ESOP Termination Date. (c) Promptly following the Closing Date, the ESOP Administrative Committee shall submit an application to the IRS requesting a favorable determination with respect to the ESOP Amendment and proposed termination of the ESOP (the “IRS Approval”). If IRS Approval cannot be obtained without modification of the ESOP Amendment, no distribution shall be made from the ESOP until such modifications are made to the ESOP Amendment as may be required by the IRS in order to obtain the IRS Approval. (d) Effective as of the Closing Date, or at such time as the Buyer may determine, the cash accounts held in the ESOP (net of any administrative expense funds or such other amounts that the fiduciaries deem to be prudent to retain in the ESOP pending its termination) and all rights that the ESOP shall have to proceeds from the Transaction that may be payable from the Escrow Amount or the Secondary Escrow Amount material respects in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, may be transferred in a “spin off” from the ESOP, pursuant to Section 414(l) qualification and tax-exemption requirements of the Code and Treasury Regulation Section 1.414(l)-1 and ERISA Section 208 into a new profit sharing plan (the “PSP”), which, if established, shall be a frozen plan, shall contain such distribution restrictions as maintained under the ESOP and which shall remain in place until the Escrow Amount and the Secondary Escrow Amount are completely disbursed to the ESOP or PSP, as may be applicable, and the other Sellers in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion requirements of the Escrow Amount or the Secondary Escrow Amount, or until such earlier or later time as the Buyer determines. (e) The Buyer may determine, in which event Shareholder Representative shall cooperate and assist the Buyer, to cause the ESOP and PSP, if established, to make available a diverse menu of investments for participants in one or both plans, following the Closing and prior ERISA. Pursuant to the termination of the ESOP and by the ESOP Amendment, within 120 days after the Closing, the Seller shall file an application with the IRS for a determination for terminating plan (Form 5310) requesting a favorable determination letter to the effect that the termination or other disposition of the PSPESOP shall not affect the qualified and tax-exempt status of the ESOP under the Code. The application by the Seller to the IRS shall disclose that the Seller intends to maintain the ESOP’s trust fund until the later of receipt of the favorable determination letter or the distribution of all funds held in escrow. Following the Closing, Seller shall promptly adopt, subject to the prior notification of the ESOP Trustee and Sellers’ Representative, such amendments to the ESOP as are required by the IRS as a condition to the issuance of such favorable determination letter (provided such actions and amendments would not require material contributions by Seller or materially increase the exposure or obligations of Seller with respect to the ESOP), shall otherwise respond promptly to any request by the IRS to provide additional information and shall use its commercially reasonable efforts, including the payment of necessary fees and expenses, to obtain such favorable determination letter from the IRS, as promptly as practicable. (fc) All payments to ESOP participants shall be made in accordance with the terms of the ESOP (including the ESOP Amendment), taking into account any timely and properly completed distribution elections made in accordance with the terms of the ESOP. With respect to any participant, beneficiary of a deceased participant or alternate payee who has filed an affirmative election to receive distribution from the ESOP, provided that properly completed distribution elections in accordance with the terms of the ESOP have been made and received by Seller, the portion of the account balances of such participant, beneficiary or alternate payee in the ESOP shall be distributed in accordance with the terms of the ESOP. The final distribution of remaining account balances (after any interim distributions), after full payment of the ESOP administrative expenses incurred by the ESOP Trustee as described in Section 8.6.4(d), of such participant, beneficiary or alternate payee in the ESOP, shall be distributed in cash as soon as reasonably practicable following the later of (i) the receipt of a favorable determination from the IRS to the effect that the termination of the ESOP did not adversely affect its tax-qualified status; or (ii) the final distribution of the Adjustment Escrow Amount and the Sellers’ Representative Holdback Amount and the receipt by the ESOP of its share of such amounts and any other amounts due to it in connection with the transactions contemplated hereby, the redemption of its shares and the windup of Seller. Following the Closing, with Seller’s cooperation, Buyer shall, and shall cause the Company to, take such actions as are necessary and appropriate to permit a participant receiving an eligible rollover distribution (as defined in Section 402(t) of the Code) from the ESOP (as so amended), who is then employed by Buyer or the Company, to transfer directly, in a rollover under Sections 401(a)(31) and 402(c) of the Code, all or any portion of such distribution to a qualified plan maintained by Buyer or the Company, if permitted by such plan and if such rollover will not have an adverse effect on such qualified plan. (d) On or before the Closing Date, Seller and the Company shall take all actions (including adopting resolutions or amendments) necessary or appropriate to permit all reasonable fees and expenses of the ESOP Trustee and reasonable administration expenses of the ESOP and costs associated with complying with this Section 8.6.4 to be paid out of the assets of the ESOP received in connection with the Closing (including an amount that is reasonably necessary to pay for the administrative expenses of the ESOP), net of the assets which may be transferred to the PSPextent permitted by ERISA, will be allocated to the accounts until such time as all assets of the ESOP participants, beneficiaries and alternate payees no later than one hundred and twenty (120) days following the Closing Date, and, with respect have been distributed to any Escrow Amount or Secondary Escrow Amount, to the accounts of the ESOP or PSP participants, beneficiaries and alternate payees, as may be applicable, within thirty (30) days following the receipt by the plan of any portion of the Escrow Amount or the Secondary Escrow Amount paid in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount. As soon as administratively feasible following the final distribution to the ESOP or PSP, as may be applicable, and the other Sellers of the entire remaining balance of the Escrow Amount or Secondary Escrow Amount in accordance with the Escrow Agreement or the agreement governing any successor account holding any portion of the Escrow Amount or the Secondary Escrow Amount, the ESOP or PSP, as may be applicable, will make a final allocation to all affected participants, beneficiaries and alternate payees. (ge) The ESOP Administrative Committee will direct Trustee shall use its reasonable efforts to obtain (to the extent possible) an opinion (the “Fairness Opinion”), stating that, as of the Closing Date (i) the consideration to be received by the ESOP Trustee for the Shares pursuant to the terms of the transactions contemplated by this Agreement is not less than “adequate consideration” within the meaning of Section 3(18) of ERISA, and (ii) the terms and conditions of the transactions contemplated by this Agreement, taken as a whole, are fair to the ESOP Trustee’s position regarding claims by the Buyer against the Escrow Amount. The ESOP Trustee will follow such instructions unless contrary to Lawfrom a financial point of view.