Common use of 401(k) Plan Clause in Contracts

401(k) Plan. As soon as administratively practicable following the Closing Date, the Company and the Acquiror shall discuss the transfer of the assets and liabilities relating to the account balances attributable to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s tax-qualified defined contribution plan (the “Company’s 401(k) Plan”) to a defined contribution plan sponsored or maintained by the Acquiror or one of its Affiliates (the “Acquiror’s 401(k) Plan”) (a “Trust to Trust Transfer”). Solely to the extent the Company and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company shall cause to be transferred from the Company’s 401(k) Plan the assets and liabilities relating to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror 401(k) Plan to accept such transfer of assets and liabilities and, effective as of the date of such transfer, to assume and fully perform the obligations of the Company’s 401(k) Plan relating to the accounts of the Transferred Employees whose balances were transferred to the Acquiror’s 401(k) Plan. Such transfer of assets and liabilities shall consist of a transfer in kind of all such account balances and shall be conducted in accordance with the requirements of all applicable Laws, including Section 414(l) of the Code. To the extent a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under the Company’s 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) to the Acquiror’s 401(k) Plan, and the Acquiror shall cause the Acquiror’s 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan).

401(k) Plan. As soon The Seller and the Purchasers shall co-operate to take whatever steps are necessary to effect the spinoff and transfer, as administratively promptly as practicable following after the Closing Date, by the Company and the Acquiror shall discuss the transfer of the assets and liabilities relating to the account balances attributable to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s tax-qualified defined contribution plan trustee (the “Company’s 401(k) PlanBOC Trustee”) to a defined contribution plan sponsored or maintained by of the Acquiror or one of its Affiliates (the “Acquiror’s 401(k) Plan”) (a “Trust to Trust Transfer”). Solely to the extent the Company and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company shall cause to be transferred from the Company’s 401(k) Plan the assets and liabilities relating to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror BOC 401(k) Plan to accept such transfer the trustee (the “Purchasers’ Trustee”) of assets and liabilities andthe Purchasers’ 401(k) Plan, effective of cash equal to the account balance (as of the date of such transfer, to assume and fully perform the obligations day of the Company’s 401(ktransfer) Plan relating to of each Employee in the accounts of the Transferred Employees whose balances were transferred to the Acquiror’s BOC 401(k) Plan. Such transfer , other than the portion of assets and liabilities shall consist of a transfer in kind of all such account balances and balance representing Participant Promissory Notes, which portion shall be conducted accounted for under Section 6.2(d). The amount to be transferred shall not include the value of the account balances of any Employees whose employment terminated other than in accordance connection with the requirements of all applicable Laws, transactions contemplated herein and who became eligible for and elected to receive a distribution (including Section 414(l) of the Code. To the extent a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under from the Company’s BOC 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) prior to the Acquiror’s date of transfer to the Purchasers’ 401(k) Plan. The Purchasers shall have full responsibility for payment of the benefits attributable to the assets so transferred. Prior to such transfer, and each Employee shall have the Acquiror shall cause same rights under the Acquiror’s BOC 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under as an active employee who participates in such plan), other than rights to receive or make additional contributions, initiate new loans or, except where otherwise required by applicable Law, make payments on existing loans. The Purchasers shall indemnify each Seller Indemnified Party in accordance with Article IX against any Losses incurred by it that are attributable to the failure of the Purchasers’ 401(k) Plan and trust to qualify under Section 401(a) of the Code. Similarly, the Seller shall indemnify each Purchaser Indemnified Party in accordance with Article IX against any losses incurred by it that are attributable to the failure of the BOC 401(k) Plan and trust to qualify under Section 401(a) of the Code.

401(k) Plan. As soon as administratively practicable following Effective immediately prior to the Closing DateContribution Time, MusicCo will become sponsor of, and assume all liabilities with respect to, the 401(k) plan maintained by the Company and (the Acquiror shall discuss the transfer “401(k) Plan”). Each employee who, after Closing, remains an employee of the assets Company (each, an “Affected Employee”) and liabilities relating who has an account balance under the 401(k) Plan prior to the Contribution Time shall be 100% vested in such account balances attributable to effective at the Transferred EmployeesContribution Time, including notwithstanding any promissory notes evidencing outstanding loan balances, vesting schedule otherwise provided under the Company’s tax-401(k) Plan. Following the Closing, Buyer shall, in consultation with the trustee of its Code Sections 401(a) and 401(k) qualified defined contribution retirement plan (the “Company’s Buyer 401(k) Plan”) ), determine in good faith whether it is reasonably practical to a defined contribution plan sponsored or maintained by the Acquiror or one of its Affiliates (the “Acquiror’s 401(k) Plan”) (a “Trust to Trust Transfer”). Solely to the extent the Company and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company shall cause to be transferred transfer directly from the Company’s 401(k) Plan the assets and liabilities relating to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror 401(k) Plan to accept such transfer of assets and liabilities and, effective as of the date of such transfer, to assume and fully perform the obligations of the Company’s Buyer 401(k) Plan relating (i) the obligation under the 401(k) Plan for benefit payments to all Affected Employees and (ii) an amount of assets equal to the accounts aggregate account balances of all Affected Employees under the Transferred Employees whose balances were transferred to the Acquiror’s 401(k) Plan. Such If Buyer determines such transfer to be reasonably practicable pursuant to the preceding sentence, it shall provide notice of such determination to MusicCo and within ninety (90) days following such notice, MusicCo shall direct the trustee of the 401(k) Plan to transfer directly from the 401(k) Plan to the Buyer 401(k) Plan (i) the obligation for benefit payments under the 401(k) Plan to all Affected Employees and (ii) an amount of assets equal to the aggregate account balances under the 401(k) Plan of all Affected Employees, in both cases valued as of the day immediately preceding the date of transfer. Assets shall be transferred in cash with the exception that outstanding loans of Affected Employees from the 401(k) Plan shall be transferred in-kind. Pending such transfer, MusicCo shall maintain the 401(k) Plan accounts of the Affected Employees on the same basis as other employees of MusicCo; provided, that, MusicCo will not seek to declare any loan in default as a result of the Affected Employee’s failure to make a required loan payment during the ninety (90) day period from the Contribution Time during which the transfer is pending. The Buyer 401(k) Plan will (i) provide that the Affected Employees are 100% vested in the amounts transferred from the 401(k) Plan (and any subsequent investment earnings on such amounts), (ii) accommodate the in-kind transfer of assets the outstanding loans and liabilities shall consist of a transfer in kind of all honor such account balances and shall be conducted loans in accordance with the requirements of all applicable Lawstheir terms, including and (iii) provide for such other benefits, rights and features as required in order to satisfy Section 414(l411(d)(6) of the Code. To The parties shall cooperate in making all filings and delivering all notices required in connection with the extent a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under the Company’s 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) to the Acquiror’s 401(k) Plan, and the Acquiror shall cause the Acquiror’s 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan)foregoing transfer.

401(k) Plan. As of the Closing Date, all Continuing Employees will be fully vested in their account balances under the applicable defined contribution plan and trusts intended to qualify under Section 401(a) of the Code that they participate in prior to the Closing (the “Seller 401(k) Plans”). Promptly following the Closing, Seller shall make to the Seller 401(k) Plans all employee contributions and certain other discretionary contributions as set forth on Schedule 7.10 with respect to the Continuing Employees employment service rendered prior to the Closing Date (the “Equivalent Contributions”). As of the Closing Date, Buyer shall maintain a defined contribution retirement plan intended to qualify under Section 401(a) of the Code (the “Buyer 401(k) Plan”) for the benefit of those Continuing Employees who shall elect and are eligible to participate in the Buyer 401(k) Plan. As soon as administratively reasonably practicable on or following the Closing Date, but in no event later than sixty (60) days following the Company Closing Date, Buyer shall, for those Continuing Employees who elect and are eligible to participate in the Acquiror shall discuss the transfer of the assets and liabilities relating to the account balances attributable to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s tax-qualified defined contribution plan (the “Company’s Buyer 401(k) Plan”, allow such Continuing Employees to make a “direct rollover” to the Buyer 401(k) to Plan of any account balance under a defined contribution plan sponsored or maintained by the Acquiror or one of its Affiliates (the “Acquiror’s Seller 401(k) Plan”) (a “Trust to Trust Transfer”). Solely to the extent the Company , and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company shall cause to be transferred from the Company’s 401(k) Plan the assets and liabilities relating to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror Buyer shall cause the Acquiror Buyer 401(k) Plan to accept as rollover contributions, all account balances (which shall include any vested employer contributions accrued (or the Equivalent Contribution therefor) through the Closing Date and all outstanding loans; provided, that (i) the Continuing Employee initiates a direct rollover within sixty (60) days following the Closing Date or such transfer other reasonable time as required by the third-party administrator of assets and liabilities and, effective as of the date of such transfer, to assume and fully perform the obligations of the Company’s a Seller 401(k) Plan relating and (ii) any Continuing Employee who has an outstanding loan under a Seller 401(k) Plan must elect to roll over such Continuing Employee’s entire balance into the accounts of Buyer 401(k) Plan in order to also roll over such loan into the Transferred Employees whose balances were transferred to the Acquiror’s Buyer 401(k) Plan. Such transfer of assets ), subject to and liabilities shall consist of a transfer in kind of all such account balances and shall be conducted in accordance with the requirements provisions of such plans and applicable Law. The Seller 401(k) Plans shall permit rollover distributions consistent with this Section 7.10 for any Continuing Employees who have incurred a termination of employment or otherwise have a distributable event. The Parties agree to cooperate in good faith and to take all applicable Lawsnecessary and appropriate actions to ensure that loans held by Continuing Employees under the Seller 401(k) Plans do not default, including Section 414(loffset or otherwise require repayment (other than pursuant to the payment schedule in effect for such loan) of the Code. To the extent as a Trust to Trust Transfer is not mutually agreedresult of, or in connection with, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under the Company’s 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) to the Acquiror’s 401(k) Plan, and the Acquiror shall cause the Acquiror’s 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan)transactions contemplated by this Agreement.

401(k) Plan. As soon Effective not later than the termination of the Continued Employment Term, Purchaser shall have in effect one or more defined contribution plans that include a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (and a related trust exempt from Tax under Section 501(a) of the Code) (as administratively practicable following the Closing Dateapplicable, the Company and the Acquiror “Purchaser 401(k) Plan”). Purchaser shall discuss the transfer of the assets and liabilities relating to the account balances attributable to the provide that each Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s tax-qualified Employee participating in a Seller Benefit Plan that is a defined contribution plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (the “Company’s Seller 401(k) Plan”) to a defined contribution plan sponsored or maintained by the Acquiror or one of its Affiliates (the “Acquiror’s 401(k) Plan”) (a “Trust to Trust Transfer”). Solely immediately prior to the extent applicable Transfer Date shall become a participant in the Company and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company shall cause to be transferred from the Company’s corresponding Purchaser 401(k) Plan the assets and liabilities relating as of or as soon as practicable following such Transfer Date. Purchaser agrees to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror Purchaser 401(k) Plan to accept allow each Transferred Employee to make a “direct rollover” to the Purchaser 401(k) Plan of the account balances of such Transferred Employee (including promissory notes evidencing any outstanding loans) under the Seller 401(k) Plan in which such Transferred Employee participated prior to the applicable Transfer Date if the Seller 401(k) Plan Permits such a direct rollover and if such direct rollover is elected in accordance with applicable Law by such Transferred Employee. The rollovers described herein shall comply with applicable Law, and each Party shall make all filings and take any actions required of such Party under applicable Law in connection therewith. Following such transfer of assets and liabilities andaccount balances, effective as of Seller shall have no Liability for any costs, expenses or damages that may result from any claim for any benefit alleged to be payable under the date of such transfer, to assume and fully perform the obligations of the Company’s Seller 401(k) Plan relating with respect to the accounts of the Transferred Employees whose balances were and their beneficiaries who have transferred to the Acquiror’s 401(k) Plan. Such transfer of assets and liabilities shall consist of a transfer in kind of all such their account balances and shall be conducted in accordance with from the requirements of all applicable Laws, including Section 414(l) of the Code. To the extent a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under the Company’s 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) to the Acquiror’s 401(k) Plan, and the Acquiror shall cause the Acquiror’s Seller 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan)the Purchaser 401(k) Plan.

401(k) Plan. As soon as administratively practicable following the Closing Date, the Company and the Acquiror Seller shall discuss the effectuate a trust-to-trust transfer of the assets and liabilities relating to the account balances attributable of Transferred Employees (whether vested or unvested) under any plan that is intended to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s be a tax-qualified defined contribution retirement plan (collectively, the “Company’s Seller 401(k) Plan”) to a plan established by Opco for the benefit of the Transferred Employees that is intended to be a tax-qualified defined contribution retirement plan sponsored or maintained by the Acquiror or one of its Affiliates (the “Acquiror’s Opco 401(k) Plan”) (a “Trust to Trust Transfer”). Solely to As soon as practicable after the extent Closing Date (but no later than thirty (30) days after the Company and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company End Date) Seller shall cause to be transferred from the Company’s trustee of the Seller 401(k) Plan to value the assets and liabilities relating account of each Transferred Employee who participates in the Seller 401(k) Plan pursuant to the terms of such plan. As of such valuation date, Seller shall cause the trustee of the Seller 401(k) Plan to transfer assets equal in value to the amount credited to each such Transferred Employee Employee’s account balances under the Seller 401(k) Plan to the trust maintained under the Opco 401(k) Plan. Such transferred assets shall be in cash or other property as determined by Seller with the consent of Opco (including except the transferred assets shall also include any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror 401(k) Plan to accept such transfer balances of assets and liabilities and, effective as of the date of such transfer, to assume and fully perform the obligations of the Company’s 401(k) Plan relating to the accounts of the Transferred Employees whose balances were transferred to the Acquiror’s 401(k) Plan. Such transfer of assets and liabilities shall consist of a transfer in kind of all such account balances and shall be conducted subject to any qualified domestic relations order pursuant to Section 414(p) of the Code) and shall be transferred in accordance with the requirements of all applicable Laws, including Section 414(l) of the Code. To Prior to, and as a condition of, any transfer of assets, Seller and Opco shall provide the extent a Trust to Trust Transfer other with satisfactory evidence that its plan is not mutually agreed, tax-qualified within the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in meaning of Section 401(a)(31401(a) of the Code) . As of his or her account balances under the Company’s transfer date, the Opco 401(k) Plan shall have sole liability for the payment of benefits accrued by Transferred Employees under the Seller 401(k) Plan and transferred in respect of such Transferred Employees and neither the Seller 401(k) Plan nor the Seller or its Affiliates shall have any obligation to Opco or with respect to employees of Opco with respect thereto (including any promissory notes evidencing outstanding loan balances under such plan) except to the Acquiror’s extent Seller has made a mistake in the calculation and transfer of assets). If Seller determines in its sole discretion to make a profit sharing contribution to the Seller 401(k) Plan for the 2009 plan year on behalf of employees of Seller, Seller will make a profit sharing contribution to the Seller 401(k) Plan for each Transferred Employee who (i) is employed by Seller as of the applicable Transfer Date, (ii) is eligible according to the terms of Seller 401(k) Plan, and (iii) remains continuously employed by Seller and Opco (and their respective Affiliates) through December 31, 2009, based on his or her eligible compensation earned from Seller for the Acquiror period from January 1, 2009 through the applicable Transfer Date. As soon as practicable following the date of such contribution, Seller shall cause effectuate a trust-to-trust transfer of the Acquiror’s account balances of Transferred Employees resulting from such profit sharing contribution from the Seller 401(k) Plan to accept such direct rollovers the Opco 401(k) Plan. Seller and Opco shall cooperate with each other (including any promissory notes evidencing outstanding loan balances under such plan)and cause the trustees of the Seller 401(k) Plan and the Opco 401(k) Plan to cooperate with each other) to effectuate the transfers of assets to the Opco 401(k) Plan.

401(k) Plan. As soon as administratively practicable following after the Closing DateClosing, Seller shall cause the Company and the Acquiror shall discuss the transfer trustee of the assets and liabilities relating to the account balances attributable to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s tax-qualified defined contribution 401(k) plan maintained by Seller (the “Company’s 401(k) Seller Plan”) to transfer to the trustee of the retirement plan established by Buyer (or MSI or Xxxx Marketing, as the case may be) that contains a defined contribution plan sponsored cash or maintained by deferred arrangement under Section 401(k) of the Acquiror or one Internal Revenue Code of its Affiliates 1986, as amended (the “Acquiror’s 401(kCode”) and is designated for the benefit of the Continuing Employees (the “New Plan”), an amount, in-kind (other than amounts invested in the Grandfathered HHG Stock Fund (as such term is defined in the Seller Plan) which shall be liquidated by the trustee of the Seller Plan following the Closing in a time and manner consistent with the requirements of the Employee Retirement Income Security Act of 1974, as amended (a “Trust to Trust TransferERISA”) and other applicable law). Solely , equal to the extent total account balances of the Company Continuing Employees, including promissory notes evidencing any outstanding loans of the Continuing Employees and actual investment earnings or losses through the Acquiror mutually agree date of transfer, held under the Seller Plan for the Continuing Employees, except for amounts as to effect a Trust which withdrawal requests have been duly submitted by such employees prior to Trust Transfer, the Company such transfer and which Seller shall cause to be transferred from paid by the Company’s 401(k) Seller Plan the assets and liabilities relating to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) Continuing Employees in accordance with the Code, ERISA and the Acquiror terms of the Seller Plan (the “Continuing Employee Account Balances”). In no event shall cause the Acquiror 401(kContinuing Employee Account Balances be less than the amount required under Section 414(l) Plan to accept of the Code and the regulations thereunder and such transfer of assets and liabilities and, effective as of the date of such transfer, to assume and fully perform the obligations of the Company’s 401(k) Plan relating to the accounts of the Transferred Employees whose balances were transferred to the Acquiror’s 401(k) Plan. Such transfer of assets and liabilities shall consist of a transfer in kind of all such account balances and shall be conducted completed in accordance with the requirements of ERISA, as amended by the Xxxxxxxx-Xxxxx Act of 2002. The transfer of the Continuing Employee Account Balances shall be accomplished in a manner designed to avoid any liquidation of the accounts of the Continuing Employees (except as otherwise provided above) and to transfer the investments in the Schwab mutual funds or other investment vehicles (collectively, the “Schwab Investments”) in accordance with the elections of the Continuing Employees to the same Schwab Investments held under the New Plan. Seller and Buyer shall provide each other with such records and documentation as they may reasonably request and shall cooperate with each other to effectuate the transfer of the Continuing Employee Account Balances from the Seller Plan to the New Plan in accordance with the terms set forth herein and all applicable Laws, including Section 414(l) of the Code. To the extent a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under the Company’s 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) to the Acquiror’s 401(k) Plan, and the Acquiror shall cause the Acquiror’s 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan)laws.

401(k) Plan. As soon as administratively practicable If requested by Purchaser in a writing delivered to Xxxxxxx following the date hereof and prior to the Closing Date, the Company Xxxxxxx Companies shall take all necessary action (including without limitation the adoption of resolutions and plan amendments and the Acquiror shall discuss the transfer delivery of the assets and liabilities relating any required notices) to terminate, effective immediately prior to the account balances attributable Effective Time, any Xxxxxxx Benefit Plan that is intended to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s constitute a tax-qualified defined contribution plan under IRC Section 401(k) (the a “Company’s 401(k) Plan”). Xxxxxxx shall provide Purchaser with a copy of the resolutions, plan amendments, notices and other documents prepared to effectuate the termination of the 401(k) Plan in advance and give Purchaser a reasonable opportunity to a defined contribution plan sponsored or maintained comment on such documents (which comments shall be considered in good faith by Xxxxxxx), and prior to the Acquiror or one Closing Date, Xxxxxxx shall provide Purchaser with the final documentation evidencing the termination of its Affiliates (the “Acquiror’s 401(k) Plan”. In the event of termination of the 401(k) (a “Trust Plan, Purchaser and Xxxxxxx shall use commercially reasonable efforts to Trust Transfer”). Solely to afford participants in the extent the Company and the Acquiror mutually agree to effect a Trust to Trust Transfer, the Company shall cause to be transferred from the Company’s 401(k) Plan who are Retained Employees with outstanding participant loans under such plan to elect a rollover of the assets and liabilities relating to loan balance from the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror 401(k) Plan to accept a 401(k) plan of Purchaser in connection with an election by such transfer participant to rollover his or her entire account in the 401(k) Plan to a 401(k) plan of assets Purchaser, subject to the terms and liabilities andconditions of the Purchaser’s 401(k) plan and the requirements of the Purchaser’s 401(k) plan record-keeper; provided that each such loan satisfies all material legal requirements, effective is not a nonexempt “prohibited transaction” under Section 406 of ERISA or Section 4975 of the IRC and is not in default as of the date of such transfer, to assume and fully perform the obligations rollover. No action taken by Xxxxxxx or any of the Company’s 401(kXxxxxxx Companies pursuant to this Section 5.1(a)(iv) Plan relating to at the accounts request of Purchaser, and no financial or other effect as a result thereof, whether taken individually or in the Transferred Employees whose balances were transferred to the Acquiror’s 401(k) Plan. Such transfer of assets and liabilities shall consist of a transfer in kind of all such account balances and aggregate, shall be conducted in accordance with the requirements of all applicable Laws, including Section 414(l) of the Code. To the extent deemed to have or constitute a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31) of the Code) of his or her account balances under the Company’s 401(k) Plan (including Material Adverse Effect for any promissory notes evidencing outstanding loan balances under such plan) to the Acquiror’s 401(k) Plan, and the Acquiror shall cause the Acquiror’s 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan)purpose contemplated by this Agreement.

401(k) Plan. As soon as administratively practicable following the Equity Closing Date, the Company and the Acquiror Issuer shall, or shall discuss the transfer of the assets and liabilities relating cause an Affiliate to, make available to the account balances attributable to the Transferred Employees, including any promissory notes evidencing outstanding loan balances, under the Company’s each Badcock Employee a tax-qualified defined contribution plan in which such Badcock Employees shall, subject to the eligibility provisions of such plan and applicable law, be eligible to participate (the “Company’s Issuer 401(k) Plan”). Subject to the terms of the Issuer 401(k) Plan and applicable law, (a) Issuer shall permit, and shall cause the Issuer 401(k) Plan to permit, any Badcock Employee entitled to an “eligible rollover distribution” (as defined in Section 402(c)(4) of the Code) from a tax-qualified plan maintained by Parent or its Affiliates (the “Parent 401(k) Plan”) to a defined contribution elect to transfer such “eligible rollover distribution” (to the extent consisting of cash and, as applicable and subject to the plan sponsored or maintained by loan policy of the Acquiror or one of its Affiliates (the “Acquiror’s Issuer 401(k) Plan”, notes relating to outstanding plan participant loans) in a direct rollover to the Issuer 401(k) Plan, and (a “Trust b) in the case of any such outstanding plan participant loans, Parent or its Affiliates and Issuer shall cooperate with each other and use commercially reasonable efforts to, subject to Trust Transfer”)the plan loan policy of the Issuer 401(k) Plan, enable rollovers of such loans to occur before such loans default. Solely Prior to the Equity Closing, Parent shall, or shall cause its applicable Affiliate (i) to amend the Parent 401(k) Plan, effective immediately prior to the Equity Closing Date and subject to consummation of the Contemplated Transactions in this Agreement, to the extent necessary to remove the Company and the Acquiror mutually agree its Subsidiaries as employers or related employers for purposes of such Parent 401(k) Plan, and (ii) to effect a Trust take all actions that are necessary or advisable to Trust Transfer, the Company shall cause to be transferred from the Company’s ensure that such Parent 401(k) Plan shall not be deemed as a “multiple employer plan” (within the assets and liabilities relating to the Transferred Employee account balances (including any promissory notes evidencing outstanding loan balances) and the Acquiror shall cause the Acquiror 401(k) Plan to accept such transfer meaning of assets and liabilities and, effective as of the date of such transfer, to assume and fully perform the obligations of the Company’s 401(k) Plan relating to the accounts of the Transferred Employees whose balances were transferred to the Acquiror’s 401(k) Plan. Such transfer of assets and liabilities shall consist of a transfer in kind of all such account balances and shall be conducted in accordance with the requirements of all applicable Laws, including Section 414(l) of the Code. To the extent a Trust to Trust Transfer is not mutually agreed, the Acquiror and the Company shall each take all actions necessary to provide that Transferred Employees who so elect may make a direct rollover (as described in Section 401(a)(31413(c) of the Code) of his or her account balances under the Company’s 401(k) Plan (including any promissory notes evidencing outstanding loan balances under such plan) with respect to the Acquiror’s 401(k) Plan, Company and the Acquiror shall cause the Acquiror’s 401(k) Plan to accept such direct rollovers (including any promissory notes evidencing outstanding loan balances under such plan)its Subsidiaries.