Common use of Qualified Defined Benefit Plans Clause in Contracts

Qualified Defined Benefit Plans. (a) As soon as practicable after and effective as of the Closing Date, Buyer shall cause the Company to adopt or designate a defined benefit plan (the “Company Retirement Plan”) that covers the Company Employees and meets the requirements of Section 401(a) of the Code. The Company Retirement Plan relating to the Company Employees shall meet the requirements of Section 11.2 of the Seller Employees’ Pension Plan (the “Seller Retirement Plan”), including a provision that no amendment to the Company Retirement Plan may substantially reduce future benefit accruals of Transferred Employees participating in the Company Retirement Plan for three years after the Closing Date, except as required by law, including compliance with the discrimination provisions of the Code and ERISA. Effective as of the Closing Date, Seller shall cause the Company Employees to cease further accrual of all benefits (a benefit freeze) under the YCI Employees’ Pension Plan (the “Seller Retirement Plan”), and the Company and its Subsidiaries shall withdraw as participating employers under the Seller Retirement Plan. Until such time as the asset transfer contemplated by Section 9.03 takes place, accrual of eligibility and vesting service shall continue under the Seller Retirement Plan. (b) As soon as practicable (but in any event within 60 days) after the Closing Date, Seller shall cause the Seller Retirement Plan to transfer cash (or, in the sole discretion of Buyer, cash and assets) to the Company Retirement Plan in an amount equal to 85% of the estimated Total Transfer Amount (as defined in Section 9.03(c) below), adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer (the amount actually transferred shall be referred to as the “Initial Transfer Amount”). Prior to the transfer of the Initial Transfer Amount, Seller shall provide Buyer with evidence reasonably satisfactory to it that the Seller Retirement Plan continues to satisfy the requirements for a qualified plan under Section 401(a) of the Code and that the trust that forms a part of such plan continues to be exempt from tax under Section 501(a) of the Code. Buyer shall cause the Company to file for a favorable determination letter within the applicable period provided under Section 401(b) of the Code and regulations issued thereunder and shall cause the Company to make such changes required by the Internal Revenue Service as a condition to receiving a favorable determination letter. Notwithstanding the foregoing, no transfer shall be made until 30 days have elapsed from the filing of any applicable Forms 5310-A by Seller and Buyer with respect to the transfer. Seller’s actuary shall be responsible for the required actuarial certification under Section 414(l) of the Code. Seller and Buyer agree to use their respective commercially reasonable best efforts to file Forms 5310-A as soon as practicable after the date hereof. (c) As soon as practicable, but not later than six months following the Closing Date, Seller shall cause a second transfer to be made from the Seller Retirement Plan to the Company Retirement Plan of cash (or, in the sole discretion of Buyer, cash and assets) in an amount equal to the “True-up Amount”. The True-up Amount shall equal the difference between the Total Transfer Amount and the Initial Transfer Amount, adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer, and further adjusted for investment returns as provided below and, to the extent Buyer requests cash, by the reasonable transaction costs incurred in selling in-kind assets within the Seller Retirement Plan. The term “Total Transfer Amount” shall mean the present value of the accrued benefit of the Company Employees, determined as of the Closing Date on a plan termination basis under the interest factors specified by the PBGC that are in effect on the Closing Date for an immediate or deferred annuity, as appropriate, for each Company Employee, and the other methods and factors specified in the regulations of the PBGC for valuation of accrued benefits upon plan termination, including expected retirement ages and expense load assumptions published by the PBGC, and the 1983 Group Annuity Mortality Table; provided that the amounts to be transferred pursuant to this Section 9.03 (including the Initial Transfer Amount) shall be determined in accordance with Section 414(l) of the Code and Treasury Regulation 1.414(l)-1, and shall be reduced to the extent necessary to satisfy Section 414(l) of the Code and Section 4044 of ERISA and any regulations issued under either Section. The True-up Amount computed above shall be further adjusted to take into account the actual investment return on the assets of the Seller Retirement Plan from the Closing Date until the date of transfer (provided that for any assets that are not valued daily, if the Buyer elects to take cash rather than an in-kind asset transfer, that asset shall be valued as of the latest valuation date for that asset prior to the transfer date, and the investment return for the period from that valuation date until the transfer date shall be deemed to be the average of the 90-day Treasury Xxxx on the auction date coincident with or next preceding such valuation date). Seller shall provide details of any such adjustments to Buyer and its designated actuary.

Qualified Defined Benefit Plans. 4.1 Prior to the Effective Time, Seller shall take all actions as are necessary to provide that all persons who are neither Business Employees nor Retired Business Employees shall cease accruing benefits under the Northrop Grumman Commercial Aircraft Division Hourly Retirement Plan and the Northrop Grumman Commercial Aircraft Division Protective Services Retirement Plan (athe "CAD Pension Plans") As soon as practicable after and effective of the Effective Time. Effective as of the Closing Date, Buyer shall cause assume the Company sponsorship of the CAD Pension Plans and in connection therewith shall assume all responsibility for the administration of such plans and their assets and liabilities with respect to adopt or designate a defined benefit plan (the “Company Retirement Plan”) that covers the Company Business Employees and meets the requirements of Section 401(a) of the CodeRetired Business Employees. The Company Retirement Plan relating Buyer shall be responsible for all contributions to the Company Employees shall meet the requirements of Section 11.2 of the Seller Employees’ Pension Plan (the “Seller Retirement Plan”), including a provision that no amendment to the Company Retirement Plan may substantially reduce future benefit accruals of Transferred Employees participating in the Company Retirement Plan for three years these plans accrued after the Closing Date, except . Buyer shall arrange effective as required by law, including compliance with the discrimination provisions of the Code Closing Date to enter into appropriate agreements or modify existing agreements with trustees and ERISAother vendors providing services to those plans; provided, however, that Seller shall use its reasonable efforts to cause such trustees and vendors to continue to provide services to such plans until December 31, 2001 (or such earlier date as Buyer shall determine) on substantially the same terms and conditions as such services were provided to the CAD Pension Plans immediately prior to the Closing Date. Effective As soon as practicable after the Closing Date but effective as of the Closing Date, Seller and Buyer shall cause the Company Employees CAD Pension Plans to cease further accrual of all benefits (a transfer to one or more other defined benefit freeze) under the YCI Employees’ Pension Plan plans maintained by Seller (the “"Seller Retirement Plan”Defined Benefit Plans"), in a manner consistent with Code Section 414(l) and using the Company assumptions set forth in Schedule 4.1, assets and its Subsidiaries liabilities (plus an appropriate share of earnings) attributable to persons who are neither Business Employees nor Retired Business Employees but who did accrue benefits under such plans, and Buyer shall withdraw have no obligation or liability with respect thereto; provided that, in the case of each plan, if the liabilities attributable to such employees account for less than 3 percent of the total assets of the plan as participating employers under the Seller Retirement Plan. Until such time as the asset transfer contemplated by Section 9.03 takes place, accrual of eligibility and vesting service shall continue under the Seller Retirement Plan. (b) As soon as practicable (but in any event within 60 days) after the Closing Date, Seller Section 414(l) shall cause be applied without an allocation under ERISA Section 4044 and the assumptions used shall be those set forth in Schedule 4.2. Such transfer of assets to the Seller Retirement Plan to transfer cash (or, in the sole discretion of Buyer, cash and assets) Defined Benefit Plans is subject to the Company Retirement Plan in an amount equal to 85% of the estimated Total Transfer Amount (as defined in Section 9.03(c) below)receipt by Buyer of, adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of no such transfer (the amount actually transferred shall be referred to as the “Initial Transfer Amount”). Prior to the transfer of the Initial Transfer Amount, Seller shall provide made unless Buyer with has received: (i) evidence reasonably satisfactory to it that Seller has timely completed all governmental filings or submissions needed in order for the Seller Retirement Plan continues Defined Benefit Plans to satisfy receive a transfer of assets from the requirements for CAD Pension Plans and (ii)(A) a qualified plan under Section 401(acurrent and valid IRS qualification letter with respect to the Seller Defined Benefit Plans, or (B) of a representation by Seller that the Code Seller Defined Benefit Plans are designed to so qualify and that Seller shall timely make all filings necessary to obtain such qualification and make any and all necessary amendments on a retroactive basis to the trust that forms a part of such plan continues to be exempt from tax under Section 501(a) of the Code. Buyer shall cause the Company to file for a favorable determination letter within the applicable period provided under Section 401(b) of the Code and regulations issued thereunder and shall cause the Company to make such changes Seller Defined Benefit Plans as are required by the Internal Revenue Service as a condition to receiving a favorable determination letter. Notwithstanding the foregoing, no transfer shall be made until 30 days have elapsed from the filing of any applicable Forms 5310-A by Seller and Buyer with respect to the transfer. Seller’s actuary shall be responsible for the required actuarial certification under Section 414(l) of the Code. Seller and Buyer agree to use their respective commercially reasonable best efforts to file Forms 5310-A as soon as practicable after the date hereofobtain such qualification. (c) As soon as practicable, but not later than six months following the Closing Date, Seller shall cause a second transfer to be made from the Seller Retirement Plan to the Company Retirement Plan of cash (or, in the sole discretion of Buyer, cash and assets) in an amount equal to the “True-up Amount”. The True-up Amount shall equal the difference between the Total Transfer Amount and the Initial Transfer Amount, adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer, and further adjusted for investment returns as provided below and, to the extent Buyer requests cash, by the reasonable transaction costs incurred in selling in-kind assets within the Seller Retirement Plan. The term “Total Transfer Amount” shall mean the present value of the accrued benefit of the Company Employees, determined as of the Closing Date on a plan termination basis under the interest factors specified by the PBGC that are in effect on the Closing Date for an immediate or deferred annuity, as appropriate, for each Company Employee, and the other methods and factors specified in the regulations of the PBGC for valuation of accrued benefits upon plan termination, including expected retirement ages and expense load assumptions published by the PBGC, and the 1983 Group Annuity Mortality Table; provided that the amounts to be transferred pursuant to this Section 9.03 (including the Initial Transfer Amount) shall be determined in accordance with Section 414(l) of the Code and Treasury Regulation 1.414(l)-1, and shall be reduced to the extent necessary to satisfy Section 414(l) of the Code and Section 4044 of ERISA and any regulations issued under either Section. The True-up Amount computed above shall be further adjusted to take into account the actual investment return on the assets of the Seller Retirement Plan from the Closing Date until the date of transfer (provided that for any assets that are not valued daily, if the Buyer elects to take cash rather than an in-kind asset transfer, that asset shall be valued as of the latest valuation date for that asset prior to the transfer date, and the investment return for the period from that valuation date until the transfer date shall be deemed to be the average of the 90-day Treasury Xxxx on the auction date coincident with or next preceding such valuation date). Seller shall provide details of any such adjustments to Buyer and its designated actuary.

Qualified Defined Benefit Plans. (ai) As soon as practicable after and effective as of the Closing Date, Buyer shall cause the Company to adopt or designate a defined benefit plan (the “Company Retirement Plan”) that covers the Company Employees and meets the requirements of Section 401(a) of the Code. The Company Retirement Plan relating to the Company Employees shall meet the requirements of Section 11.2 of the Seller Employees’ Pension Plan (the “Seller Retirement Plan”), including a provision that no amendment to the Company Retirement Plan may substantially reduce future benefit accruals of Transferred Employees participating in the Company Retirement Plan for three years after the Closing Date, except as required by law, including compliance with the discrimination provisions of the Code and ERISA. Effective as of the Closing Date, Seller Purchaser shall cause establish a qualified defined benefit plan (the Company “Purchaser DB Plan”) for the benefit of the Transferred Employees which will provide substantially comparable benefits to cease further accrual of all benefits (a benefit freeze) those provided under the YCI Employees’ Pension DTE Energy Company Retirement Plan (whether such employees participate in the traditional final-average pay defined benefit portion of such plan or the cash balance portion of such plan) (the “Seller Retirement DB Plan”)) that provides an immediately vested defined benefit, and the Company and its Subsidiaries shall withdraw as participating employers under the Seller Retirement Plan. Until such time as the asset transfer contemplated by Section 9.03 takes place, accrual of eligibility and vesting service shall continue under the Seller Retirement Plan. (b) As soon as practicable (but in any event within 60 days) after accrued through the Closing Date, Seller shall cause the Seller Retirement Plan to transfer cash Date (or, if later, the date any Transferred Employee commences employment with ITC), to the Transferred Employees participating in the sole discretion of Buyer, cash and assets) Seller DB Plan immediately prior to the Company Retirement Plan in an amount equal to 85% of the estimated Total Transfer Amount (as defined in Section 9.03(c) below), adjusted to reflect any benefit payments made by the Seller Retirement Plan Closing Date in respect of whom assets and liabilities are transferred in accordance with this Section 9.2(e). Effective as of the Company Employees on and after the Closing Date and before the date of transfer (the amount actually transferred shall be referred to as the “Initial Transfer Amount”Date (as hereinafter defined) (or the True-Up Date (as hereinafter defined). Prior to , as applicable) and contingent upon the transfer of the Initial Transfer AmountAmount (as described in paragraph (ii) below) (or the True-Up Amount (as described in paragraph (iii) below), as applicable) to the Purchaser DB Plan, Purchaser shall assume all liabilities of the Seller shall provide Buyer with respect to Transferred Employees under the Seller DB Plan (whether such employees participated in the traditional final-average pay defined benefit portion of such plan or the cash balance portion of such plan). (ii) Within 30 days after the Closing Date, or if later, 20 days following the date on which Seller has been provided evidence reasonably satisfactory to it that Purchaser has established a trust (or trusts) to hold the assets of the Seller Retirement DB Plans that is qualified under Section 501 of the Code and that the Purchaser DB Plan continues is qualified under Section 401(a) of the Code (“Initial Transfer Date”), Seller shall cause the trust holding the assets of the Seller DB Plan to satisfy make an initial transfer of assets in cash equal to the requirements for a Initial Transfer Amount (as hereinafter defined). In addition, prior to the Initial Transfer Date, Seller shall provide Purchaser with evidence reasonably satisfactory to Purchaser that the Seller DB Plan remains qualified plan under Section 401(a) of the Code and that the trust that forms a part holding the assets of such plan continues to be exempt from tax the Seller DB Plan remains qualified under Section 501(a) 501 of the Code. Buyer shall cause For purposes of this Section 9.2(e), the Company to file for a favorable determination letter within the applicable period provided under Section 401(b) of the Code and regulations issued thereunder and shall cause the Company to make such changes required by the Internal Revenue Service as a condition to receiving a favorable determination letter. Notwithstanding the foregoing, no transfer “Initial Transfer Amount” shall be made until 30 days have elapsed from the filing of any applicable Forms 5310-A by Seller and Buyer with respect to the transfer. Seller’s actuary shall be responsible for the required actuarial certification under Section 414(l) of the Code. Seller and Buyer agree to use their respective commercially reasonable best efforts to file Forms 5310-A as soon as practicable after the date hereof. (c) As soon as practicable, but not later than six months following the Closing Date, Seller shall cause a second transfer to be made from the Seller Retirement Plan to the Company Retirement Plan of cash (or, in the sole discretion of Buyer, cash and assets) in an amount equal to the “True-up Amount”. The True-up Amount shall equal sum of (A) the difference between greater of (x) the Total Transfer Amount and the Initial Transfer Amount, adjusted to reflect any projected benefit payments made by obligation under the Seller Retirement DB Plan in respect of the Company Available Employees on and after who become Transferred Employees (whether such employees participate in the Closing Date and before traditional final-average pay defined benefit portion of such plan or the date cash balance portion of transfersuch plan), and further adjusted for investment returns as provided below and, to the extent Buyer requests cash, by the reasonable transaction costs incurred in selling in-kind assets within the Seller Retirement Plan. The term “Total Transfer Amount” shall mean the present value of the accrued benefit of the Company Employees, determined calculated as of the Closing Date on a plan termination basis under (the interest factors specified by “Initial PBO”) and (y) the PBGC that are in effect on the Closing Date for an immediate or deferred annuity, as appropriate, for each Company Employee, and the other methods and factors specified in the regulations of the PBGC for valuation of accrued benefits upon plan termination, including expected retirement ages and expense load assumptions published by the PBGC, and the 1983 Group Annuity Mortality Table; provided that the amounts amount required to be transferred hereunder pursuant to this Section 9.03 (including the Initial Transfer Amount) shall be determined in accordance with Section 414(l) of the Code and Treasury Regulation 1.414(l)-1, and shall be reduced to the extent necessary to satisfy Section 414(l) of the Code and Section 4044 of ERISA and any regulations issued under either Section. The True-up Amount computed above shall be further adjusted to take into account promulgated thereunder (as certified by the actual investment return on the assets of the Seller Retirement Plan Seller’s Actuary), plus (B) interest accruing from the Closing Date until through the date of transfer (provided that for any assets that are not valued daily, if Initial Transfer Date on the Buyer elects to take cash rather than an in-kind asset transfer, that asset shall be valued as of Initial Transfer Amount using the latest valuation date for that asset prior to the transfer date, and the investment return for the period from that valuation date until the transfer date shall be deemed to be the average of the rate paid on a 90-day Treasury Xxxx on the auction date coincident with or next immediately preceding the Closing Date, minus (C) any payments made to or in respect of the Transferred Employees from the Seller DB Plan for whom the Initial PBO is being calculated (including any distributions of the cash balance portion of the Seller DB Plan that are made to Transferred Employees who elect to receive such valuation datedistributions in accordance with the terms of the Seller DB Plan). Subject to Section 9.2(k) of this Agreement, the Initial PBO shall be calculated by Seller’s Actuary using the assumptions set forth on Schedule 9.2(e). For purposes of this paragraph, “evidence reasonably satisfactory” to a Party of a plan’s qualification under Section 401(a) of the Code and a corresponding trust’s qualification under Section 501(a) of the Code shall include a favorable determination letter from the Internal Revenue Service as to such status, as the plan and trust are currently in effect (including any required changes thereto), or (if no such letter has been requested or received), an opinion of counsel, which states that such plan and trust in form comply with the applicable requirements of the Code and a commitment that the Party will make any changes required by the Internal Revenue Service to receive a favorable determination letter. (iii) Within ninety (90) days after the Initial Transfer Date (the “True-Up Date”), Seller shall, if necessary, cause a second transfer to be made in cash of the “True-Up Amount.” The True-Up Amount shall provide details be equal to the sum of (A) the greater of (x) the projected benefit obligation under the Seller DB Plan in respect of the Available Employees who become Transferred Employees within ninety (90) days after the Closing Date, if any (whether such adjustments employees participate in the traditional final-average pay defined benefit portion of such plan or the cash balance portion of such plan), calculated as of such Transferred Employees’ last day of employment with Seller (the “True-Up PBO”) and (y) the amount required to Buyer be transferred hereunder pursuant to Section 414(l) of the Code and its designated actuaryany regulations promulgated thereunder (as certified by the Seller’s Actuary), plus (B) interest accruing from such Transferred Employees’ last day of employment with Seller through the Second Transfer Date on the True-Up Amount using the rate paid on a 90-day Treasury Xxxx on the auction date coincident with or immediately preceding the Closing Date, minus (C) any payments (including any distributions of the cash balance portion of the Seller DB Plan that are made to Transferred Employees who elect to receive such distributions in accordance with the terms of the Seller DB Plan) made to or in respect of the Transferred Employees from the Seller DB Plan for whom the True-Up PBO is being calculated. The True-Up Amount shall be transferred in cash no later than thirty (30) days after the True-Up Date (such final transfer date, the “Second Transfer Date”). Subject to Section 9.2(k) of this Agreement, the True-Up PBO shall be calculated by Seller’s Actuary using the assumptions set forth on Schedule 9.2(e). (iv) Unless the Parties agree otherwise, all transfers provided for under this Section 9.2(e) shall occur on the last business day of a month. Subject to Section 9.2(k) of this Agreement, all determinations of the Initial PBO, Initial Transfer Amount, True-Up PBO, True-Up Amount, shall be calculated by Seller’s Actuary.

Qualified Defined Benefit Plans. (a) As soon as practicable after and effective as If the current Qualified Company Employee Benefit Plan that is subject to Title IV of the Closing Date, Buyer shall cause the Company to adopt or designate a defined benefit plan ERISA (the “Company Retirement Defined Benefit Plan”) that covers is merged into the Company Employees and meets the requirements qualified defined benefit plan of Section 401(a) of the Code. The Company Retirement Plan relating to the Company Employees shall meet the requirements of Section 11.2 of the Seller Employees’ Pension Plan Parent (the “Seller Retirement Parent Defined Benefit Plan”), including a provision that no amendment to ) and the Company Retirement Parent Defined Benefit Plan may substantially reduce has not previously been terminated or frozen for purposes of future benefit accruals of Transferred Employees participating accruals, (i) all participants in the Company Retirement Defined Benefit Plan will participate in the Parent Defined Benefit Plan and shall accrue benefits beginning immediately following the merger of the plans to the same extent as similarly-situated participants in the Parent Defined Benefit Plan who are not Acquired Employees and (ii) benefits for three years Acquired Employees under the merged plan shall be determined using a “two piece” benefit formula, using for purposes of calculating the benefit under both pieces the participant’s compensation at any time before or after the Closing Date, except as required by law, including compliance with the discrimination provisions effective date of the Code and ERISA. Effective as of the Closing Date, Seller shall cause the Company Employees to cease further accrual of all benefits (a benefit freeze) under the YCI Employees’ Pension Plan plan merger (the “Seller Retirement PlanPlan Merger”). The first piece of the benefit will be calculated using the formula under the Company Defined Benefit Plan and shall use, for purposes of the calculation, all service with the Company, Parent or its affiliates prior to the “Plan Merger Date” but no service after the Plan Merger Date, and the second piece will be calculated using the formula under the Parent Defined Benefit Plan that applies to similarly- situated plan participants who are not Acquired Employees and shall use, for purposes of the calculation, all service with the Company, Parent of any of their affiliates after the Plan Merger Date, but no service prior to the Plan Merger Date. The formula used for calculating benefits under the Company Defined Benefit Plan shall not be amended after the Effective Time, and the Company and its Subsidiaries Defined Benefit Plan shall withdraw not be terminated or frozen for purposes of future benefit accruals before the effective date as participating employers under the Seller Retirement Plan. Until such time of which Parent terminates or freezes all future accruals under, as the asset transfer contemplated by Section 9.03 takes placecase may be, accrual all of eligibility and vesting service its tax-qualified defined benefit retirement plans. For the avoidance of doubt, no Acquired Employee shall continue accrue benefits under the Seller Retirement Plan. (b) As soon as practicable (but in any event within 60 days) after the Closing Date, Seller shall cause the Seller Retirement Plan to transfer cash (or, in the sole discretion of Buyer, cash and assets) to both the Company Retirement Defined Benefit Plan in an amount equal to 85% of and the estimated Total Transfer Amount (as defined in Section 9.03(c) below), adjusted to reflect any benefit payments made by the Seller Retirement Parent Defined Benefit Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer (the amount actually transferred shall be referred to as the “Initial Transfer Amount”). Prior to the transfer of the Initial Transfer Amount, Seller shall provide Buyer with evidence reasonably satisfactory to it that the Seller Retirement Plan continues to satisfy the requirements for a qualified plan under Section 401(a) of the Code and that the trust that forms a part of such plan continues to be exempt from tax under Section 501(a) of the Code. Buyer shall cause the Company to file for a favorable determination letter within the applicable period provided under Section 401(b) of the Code and regulations issued thereunder and shall cause the Company to make such changes required by the Internal Revenue Service as a condition to receiving a favorable determination letter. Notwithstanding the foregoing, no transfer shall be made until 30 days have elapsed from the filing of any applicable Forms 5310-A by Seller and Buyer with respect to the transfer. Seller’s actuary shall be responsible for the required actuarial certification under Section 414(l) same period of the Code. Seller and Buyer agree to use their respective commercially reasonable best efforts to file Forms 5310-A as soon as practicable after the date hereofservice. (c) As soon as practicable, but not later than six months following the Closing Date, Seller shall cause a second transfer to be made from the Seller Retirement Plan to the Company Retirement Plan of cash (or, in the sole discretion of Buyer, cash and assets) in an amount equal to the “True-up Amount”. The True-up Amount shall equal the difference between the Total Transfer Amount and the Initial Transfer Amount, adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer, and further adjusted for investment returns as provided below and, to the extent Buyer requests cash, by the reasonable transaction costs incurred in selling in-kind assets within the Seller Retirement Plan. The term “Total Transfer Amount” shall mean the present value of the accrued benefit of the Company Employees, determined as of the Closing Date on a plan termination basis under the interest factors specified by the PBGC that are in effect on the Closing Date for an immediate or deferred annuity, as appropriate, for each Company Employee, and the other methods and factors specified in the regulations of the PBGC for valuation of accrued benefits upon plan termination, including expected retirement ages and expense load assumptions published by the PBGC, and the 1983 Group Annuity Mortality Table; provided that the amounts to be transferred pursuant to this Section 9.03 (including the Initial Transfer Amount) shall be determined in accordance with Section 414(l) of the Code and Treasury Regulation 1.414(l)-1, and shall be reduced to the extent necessary to satisfy Section 414(l) of the Code and Section 4044 of ERISA and any regulations issued under either Section. The True-up Amount computed above shall be further adjusted to take into account the actual investment return on the assets of the Seller Retirement Plan from the Closing Date until the date of transfer (provided that for any assets that are not valued daily, if the Buyer elects to take cash rather than an in-kind asset transfer, that asset shall be valued as of the latest valuation date for that asset prior to the transfer date, and the investment return for the period from that valuation date until the transfer date shall be deemed to be the average of the 90-day Treasury Xxxx on the auction date coincident with or next preceding such valuation date). Seller shall provide details of any such adjustments to Buyer and its designated actuary.

Qualified Defined Benefit Plans. (a) As soon as practicable after and effective as If the current Qualified Company Employee Benefit Plan that is subject to Title IV of the Closing Date, Buyer shall cause the Company to adopt or designate a defined benefit plan ERISA (the “Company Retirement Defined Benefit Plan”) that covers is merged into the Company Employees and meets the requirements qualified defined benefit plan of Section 401(a) of the Code. The Company Retirement Plan relating to the Company Employees shall meet the requirements of Section 11.2 of the Seller Employees’ Pension Plan Parent (the “Seller Retirement Parent Defined Benefit Plan”), including a provision that no amendment to ) and the Company Retirement Parent Defined Benefit Plan may substantially reduce has not previously been terminated or frozen for purposes of future benefit accruals of Transferred Employees participating accruals, (i) all participants in the Company Retirement Defined Benefit Plan will participate in the Parent Defined Benefit Plan and shall accrue benefits beginning immediately following the merger of the plans to the same extent as similarly-situated participants in the Parent Defined Benefit Plan who are not Acquired Employees and (ii) benefits for three years Acquired Employees under the merged plan shall be determined using a “two piece” benefit formula, using for purposes of calculating the benefit under both pieces the participant’s compensation at any time before or after the Closing Date, except as required by law, including compliance with the discrimination provisions effective date of the Code and ERISA. Effective as of the Closing Date, Seller shall cause the Company Employees to cease further accrual of all benefits (a benefit freeze) under the YCI Employees’ Pension Plan plan merger (the “Seller Retirement PlanPlan Merger”). The first piece of the benefit will be calculated using the formula under the Company Defined Benefit Plan and shall use, for purposes of the calculation, all service with the Company, Parent or its affiliates prior to the “Plan Merger Date” but no service after the Plan Merger Date, and the second piece will be calculated using the formula under the Parent Defined Benefit Plan that applies to similarly-situated plan participants who are not Acquired Employees and shall use, for purposes of the calculation, all service with the Company, Parent of any of their affiliates after the Plan Merger Date, but no service prior to the Plan Merger Date. The formula used for calculating benefits under the Company Defined Benefit Plan shall not be amended after the Effective Time, and the Company and its Subsidiaries Defined Benefit Plan shall withdraw not be terminated or frozen for purposes of future benefit accruals before the effective date as participating employers under the Seller Retirement Plan. Until such time of which Parent terminates or freezes all future accruals under, as the asset transfer contemplated by Section 9.03 takes placecase may be, accrual all of eligibility and vesting service its tax-qualified defined benefit retirement plans. For the avoidance of doubt, no Acquired Employee shall continue accrue benefits under the Seller Retirement Plan. (b) As soon as practicable (but in any event within 60 days) after the Closing Date, Seller shall cause the Seller Retirement Plan to transfer cash (or, in the sole discretion of Buyer, cash and assets) to both the Company Retirement Defined Benefit Plan in an amount equal to 85% of and the estimated Total Transfer Amount (as defined in Section 9.03(c) below), adjusted to reflect any benefit payments made by the Seller Retirement Parent Defined Benefit Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer (the amount actually transferred shall be referred to as the “Initial Transfer Amount”). Prior to the transfer of the Initial Transfer Amount, Seller shall provide Buyer with evidence reasonably satisfactory to it that the Seller Retirement Plan continues to satisfy the requirements for a qualified plan under Section 401(a) of the Code and that the trust that forms a part of such plan continues to be exempt from tax under Section 501(a) of the Code. Buyer shall cause the Company to file for a favorable determination letter within the applicable period provided under Section 401(b) of the Code and regulations issued thereunder and shall cause the Company to make such changes required by the Internal Revenue Service as a condition to receiving a favorable determination letter. Notwithstanding the foregoing, no transfer shall be made until 30 days have elapsed from the filing of any applicable Forms 5310-A by Seller and Buyer with respect to the transfer. Seller’s actuary shall be responsible for the required actuarial certification under Section 414(l) same period of the Code. Seller and Buyer agree to use their respective commercially reasonable best efforts to file Forms 5310-A as soon as practicable after the date hereofservice. (c) As soon as practicable, but not later than six months following the Closing Date, Seller shall cause a second transfer to be made from the Seller Retirement Plan to the Company Retirement Plan of cash (or, in the sole discretion of Buyer, cash and assets) in an amount equal to the “True-up Amount”. The True-up Amount shall equal the difference between the Total Transfer Amount and the Initial Transfer Amount, adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer, and further adjusted for investment returns as provided below and, to the extent Buyer requests cash, by the reasonable transaction costs incurred in selling in-kind assets within the Seller Retirement Plan. The term “Total Transfer Amount” shall mean the present value of the accrued benefit of the Company Employees, determined as of the Closing Date on a plan termination basis under the interest factors specified by the PBGC that are in effect on the Closing Date for an immediate or deferred annuity, as appropriate, for each Company Employee, and the other methods and factors specified in the regulations of the PBGC for valuation of accrued benefits upon plan termination, including expected retirement ages and expense load assumptions published by the PBGC, and the 1983 Group Annuity Mortality Table; provided that the amounts to be transferred pursuant to this Section 9.03 (including the Initial Transfer Amount) shall be determined in accordance with Section 414(l) of the Code and Treasury Regulation 1.414(l)-1, and shall be reduced to the extent necessary to satisfy Section 414(l) of the Code and Section 4044 of ERISA and any regulations issued under either Section. The True-up Amount computed above shall be further adjusted to take into account the actual investment return on the assets of the Seller Retirement Plan from the Closing Date until the date of transfer (provided that for any assets that are not valued daily, if the Buyer elects to take cash rather than an in-kind asset transfer, that asset shall be valued as of the latest valuation date for that asset prior to the transfer date, and the investment return for the period from that valuation date until the transfer date shall be deemed to be the average of the 90-day Treasury Xxxx on the auction date coincident with or next preceding such valuation date). Seller shall provide details of any such adjustments to Buyer and its designated actuary.

Qualified Defined Benefit Plans. (a) As soon as practicable after and effective as of the Closing Distribution Date, Buyer Holdings shall, or shall cause a member of the Company to Nabisco Group to, adopt or designate a defined benefit plan (the “Company "Holdings Retirement Plan”") that covers the Company members of the Holdings Employee Group that participate in the Retirement Plan for Employees of RJR Nabisco, Inc. ("RJRN Retirement Plan") immediately before the Distribution Date ("Transferred Participants") and meets the requirements of Section 401(a) of the Code. The Company Holdings agrees that all service credited under the RJRN Retirement Plan relating as of the Distribution Date with respect to the Company Employees Transferred Participants shall meet be credited under the requirements of Section 11.2 of the Seller Employees’ Pension Plan (the “Seller Retirement Plan”), including a provision that no amendment to the Company Retirement Plan may substantially reduce future benefit accruals of Transferred Employees participating in the Company Holdings Retirement Plan for three years after the Closing Date, except as required by lawall plan purposes, including compliance with the discrimination provisions of the Code eligibility, vesting and ERISAbenefit accrual. Effective as of the Closing Distribution Date, Seller RJRN shall cause the Company Employees Transferred Participants to cease further accrual of all benefits (a benefit freeze) under the YCI Employees’ Pension Plan (the “Seller Retirement Plan”), and the Company and its Subsidiaries shall withdraw as participating employers under the Seller Retirement Plan. Until such time as the asset transfer contemplated by Section 9.03 takes place, accrual of eligibility and vesting service shall continue under the Seller RJRN Retirement Plan. (bi) As soon as practicable (but in any event within 60 days) after the Closing Distribution Date, Seller RJRN shall cause the Seller Retirement Plan to transfer cash (or, in the sole discretion of Buyer, cash and assets) to the Company Retirement Plan in an amount equal to 85% of the estimated Total Transfer Amount (as defined in Section 9.03(c) below), adjusted to reflect any benefit payments made by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer (the amount actually transferred shall be referred to as the “Initial Transfer Amount”). Prior to the transfer of the Initial Transfer Amount, Seller shall provide Buyer with evidence reasonably satisfactory to it that the Seller Retirement Plan continues to satisfy the requirements for a qualified plan under Section 401(a) of the Code and that the trust that forms a part of such plan continues to be exempt from tax under Section 501(a) of the Code. Buyer shall cause the Company to file for a favorable determination letter within the applicable period provided under Section 401(b) of the Code and regulations issued thereunder and shall cause the Company to make such changes required by the Internal Revenue Service as a condition to receiving a favorable determination letter. Notwithstanding the foregoing, no transfer shall be made until 30 days have elapsed transferred from the filing of any applicable Forms 5310-A by Seller and Buyer with respect to the transfer. Seller’s actuary shall be responsible for the required actuarial certification under Section 414(l) of the Code. Seller and Buyer agree to use their respective commercially reasonable best efforts to file Forms 5310-A as soon as practicable after the date hereof. (c) As soon as practicable, but not later than six months following the Closing Date, Seller shall cause a second transfer to be made from the Seller RJRN Retirement Plan to the Company Holdings Retirement Plan of cash (orassets, in the sole discretion of Buyercash, cash and assets) in an amount equal to the “True-up Amount”. The True-up Amount shall equal the difference between the Total Transfer Amount and the Initial Transfer Amount, adjusted to reflect any benefit payments made amount of assets required by the Seller Retirement Plan in respect of the Company Employees on and after the Closing Date and before the date of transfer, and further adjusted for investment returns as provided below and, to the extent Buyer requests cash, by the reasonable transaction costs incurred in selling in-kind assets within the Seller Retirement Plan. The term “Total Transfer Amount” shall mean the present value of the accrued benefit of the Company Employees, determined as of the Closing Date on a plan termination basis under the interest factors specified by the PBGC that are in effect on the Closing Date for an immediate or deferred annuity, as appropriate, for each Company Employee, and the other methods and factors specified in the regulations of the PBGC for valuation of accrued benefits upon plan termination, including expected retirement ages and expense load assumptions published by the PBGC, and the 1983 Group Annuity Mortality Table; provided that the amounts to be transferred pursuant to this Section 9.03 (including the Initial Transfer Amount) shall be determined in accordance with Section 414(l) of the Code and Treasury Regulation 1.414(l)-1in respect of Transferred Participants, based on allocating assets by priority categories described in Section 4044(a) of ERISA, as determined under (ii) below (the "414(l) Amount"), reduced by distributions, if any, from, and reasonable expenses of administration (consistent with past practice) under, the RJRN Retirement Plan for benefits or other purposes made with respect to the Transferred Participants from the Distribution Date through the date that the assets are transferred to the trust maintained under the Holdings Retirement Plan, plus or minus interest on the 414(l) Amount based on the actual rate of return on assets held in the Master Trust for the RJRN Retirement Plan net of that trust's fees and expenses from and including the Distribution Date through but excluding the transfer date. The 414(l) Amount shall be reduced adjusted as may be required by the Pension Benefit Guaranty Corporation ("PBGC") or the IRS to maintain the extent necessary to satisfy status of the Holdings Retirement Plan or the RJRN Retirement Plan as an employee pension plan meeting the requirements of Section 414(l401(a) of the Code Code. Within 30 days before the Distribution Date or as soon as practicable thereafter, Holdings and Section 4044 RJRN shall make any required governmental filings necessary to effect the asset transfers described in this Section, including the filing of ERISA and any regulations issued under either Section. The TrueIRS Form 5310-up Amount computed above shall be further adjusted to take into account the actual investment return on the assets of the Seller Retirement Plan from the Closing Date until the date of transfer (provided that for any assets that are not valued daily, if the Buyer elects to take cash rather than an in-kind asset transfer, that asset shall be valued as of the latest valuation date for that asset prior to the transfer date, and the investment return for the period from that valuation date until the transfer date shall be deemed to be the average of the 90-day Treasury Xxxx on the auction date coincident with or next preceding such valuation date). Seller shall provide details of any such adjustments to Buyer and its designated actuary.A.