Common use of U.S. Defined Contribution Plans Clause in Contracts

U.S. Defined Contribution Plans. Effective as of January 1, 2024, (i) (A) Parent shall transfer from the BorgWarner Inc. Retirement Savings Plan (the “BW RSP”) to a tax-qualified defined contribution plan sponsored by SpinCo or another member of the SpinCo Group (the “RSP Mirror Plan”) all Assets and Liabilities under the BW RSP with respect to Employees, Former Employees and Legacy Former Employees and (B) the RSP Mirror Plan shall assume all such Assets and Liabilities from the BW RSP, (ii) (A) Parent shall transfer from the Deferred Plans to comparable plans sponsored by SpinCo or another member of the SpinCo Group (the “Mirror Deferred Compensation Plans”) all Liabilities under the Deferred Plans with respect to Employees and Former Employees and (B) the Mirror Deferred Compensation Plans shall assume all such Liabilities from the Deferred Compensation Plans, and (iii) SpinCo shall assume, and shall cause any other SpinCo Group member that sponsors the RSP Mirror Plan or a Mirror Deferred Compensation Plan to assume, all responsibility for funding and paying (or causing to be paid) the transferred Liabilities described in this Section 5(b) for any such plan that SpinCo or such other member sponsors. For the avoidance of doubt, the Assets and Liabilities to be transferred with respect to the BW RSP shall include the allocable portion (in proportion to the aggregate account balances transferred to the RSP Mirror Plan) of the forfeiture account and revenue account accumulation held in the BW RSP as of January 1, 2024 (net of any applicable estimated unpaid plan expenses for the most recently completed plan year), and promissory notes evidencing plan loans, and neither the transfers described in this Section 5(b), nor the Distribution Date, shall be treated as a “separation from service” as defined under Treasury Regulation s. 1.409A-1(h) for purposes of the Deferred Plans and the Mirror Deferred Compensation Plans or as a “severance from employment” within the meaning of Treasury Regulation s. 1.401(k)-1(d)(2) for purposes of the RSP. After the transfer of Assets and Liabilities has occurred with respect to the BW RSP and the RSP Mirror Plan as contemplated by this paragraph, if on further review it is determined and agreed upon by the Parties that an incorrect amount of assets was transferred, there shall be a corresponding adjustment to correct any such mistake. The Liabilities transferred in accordance with this Section 5(b) shall cease to be Liabilities of the BW RSP (and the BW RSP Assets transferred in accordance with this Section 5(b), if any, shall cease to be Assets of the BW RSP), the Deferred Plans and the Parent Group (excluding the SpinCo Group) as of January 1, 2024. From and after January 1, 2024, the RSP Mirror Plan, the Mirror Deferred Compensation Plans and the members of the SpinCo Group that sponsor such plans, as applicable, shall be responsible for all obligations and Liabilities (including, for the avoidance of doubt, the obligation to defend claims related to benefits and/or benefits eligibility) with respect to, or in any way related to, the Liabilities transferred under this Section 5(b), whether accrued before, on or after January 1, 2024. The plan documents for the RSP Mirror Plan and the Mirror Deferred Compensation Plans adopted on January 1, 2024 shall reflect the service crediting requirements described in Section 4(d). SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for, and SpinCo shall indemnify and defend the Parent Group against, any and all claims related to (x) the establishment of, or transfer of Liabilities (and Assets, where applicable) to, the RSP Mirror Plan or the Mirror Deferred Compensation Plans, and/or the members of the SpinCo Group, and/or (y) any amendments to, or termination of, the RSP Mirror Plan or the Mirror Deferred Compensation Plans. For the avoidance of doubt, SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for all Liabilities arising from clause (x) or (y). Employees, Former Employees, and Legacy Former Employees who otherwise meet the eligibility requirements of the BW RSP and the Deferred Plans shall be eligible to participate in the BW RSP and the Deferred Plans through December 31, 2023, unless otherwise mutually agreed by the Parties or as otherwise required by applicable Law; provided that SpinCo shall continue to reimburse Parent promptly for the full cost of any benefits provided under such BW RSP and the Deferred Plans (including expenses) and pay Parent for all administrative and other expenses associated with such continued participation in the BW RSP and the Deferred Plans.

U.S. Defined Contribution Plans. Prior to the Effective as of January 1Time, 2024, Emerson shall (i) cause the trustee of any Emerson 401(k) Plan to segregate the assets (Aincluding outstanding participant loans) Parent of such Emerson 401(k) Plan representing the full account balances of Echo Business Employees that are expected to become Continuing Echo Business Employees as of the Closing Date and (ii) make all necessary amendments to the applicable Emerson 401(k) Plan and related trust agreements to provide for such segregation of assets and the transfer of assets as described below. As of the Effective Time, Newco shall, or shall transfer from the BorgWarner Inc. Retirement Savings Plan (the “BW RSP”) to cause its applicable Subsidiary to, have in place a tax-qualified defined contribution plan sponsored by SpinCo with a cash or another member deferred arrangement under Section 401(k) of the SpinCo Group Code (the “RSP Mirror Newco 401(k) Plan”) all Assets and Liabilities under that will (A) cover Continuing Echo Business Employees as of the BW RSP with respect to Employees, Former Employees and Legacy Former Employees Effective Time and (B) the RSP Mirror Plan shall assume all such Assets and Liabilities from the BW RSP, (ii) (A) Parent shall transfer from the Deferred Plans to comparable plans sponsored by SpinCo or another member of the SpinCo Group (the “Mirror Deferred Compensation Plans”) all Liabilities under the Deferred Plans with respect to Employees and Former Employees and (B) the Mirror Deferred Compensation Plans shall assume all such Liabilities from the Deferred Compensation Plans, and (iii) SpinCo shall assume, and shall cause any other SpinCo Group member that sponsors the RSP Mirror Plan or a Mirror Deferred Compensation Plan to assume, all responsibility for funding and paying (or causing to be paid) the transferred Liabilities described in this Section 5(b) for any such plan that SpinCo or such other member sponsors. For the avoidance of doubt, the Assets and Liabilities to be transferred with respect to the BW RSP shall include the allocable portion (in proportion to the aggregate account balances transferred to the RSP Mirror Plan) of the forfeiture account and revenue account accumulation held in the BW RSP as of January 1, 2024 (net of any applicable estimated unpaid plan expenses for the most recently completed plan year), and promissory notes evidencing plan loans, and neither the transfers described in this Section 5(b), nor the Distribution Date, shall be treated as a “separation from service” as defined under Treasury Regulation s. 1.409A-1(h) for purposes of the Deferred Plans and the Mirror Deferred Compensation Plans or as a “severance from employment” within the meaning of Treasury Regulation s. 1.401(k)-1(d)(2) for purposes of the RSP. After accept the transfer of Assets account balances (including outstanding participant loans) from the Emerson 401(k) Plan as described below. As soon as practicable following the Effective Time, but no later than one-hundred and Liabilities has occurred twenty (120) days following the Effective Time, Emerson shall cause the trustee of each Emerson 401(k) Plan to transfer, and Newco shall cause the Newco 401(k) Plan to receive, in the form of cash (or promissory notes representing outstanding loans of the Continuing Echo Business Employees) the full account balances of the Continuing Echo Business Employees under the Emerson 401(k) Plan (which account balances will have been credited with respect appropriate earnings attributable to the BW RSP and period from the RSP Mirror Plan Effective Time to the date of transfer described herein), reduced by any necessary benefit or withdrawal payments to or in respect of Continuing Echo Business Employees occurring during the period from the Effective Time to the date of transfer described herein, to the appropriate trustee as contemplated designated by this paragraphNewco under the trust agreement forming a part of the Newco 401(k) Plan; provided, if on further review it is determined and agreed upon by the Parties that an incorrect amount of assets was transferredhowever, there such transferred amounts shall only be a corresponding adjustment to correct any such mistake. The Liabilities transferred in accordance with this Section 5(b414(l) shall cease to be Liabilities of the BW RSP (Code and the BW RSP Assets transferred in accordance with this Section 5(b)all other Applicable Law. The Newco 401(k) Plan shall, if any, shall cease to be Assets effective as of the BW RSP)date of transfer described herein, the Deferred Plans and the Parent Group (excluding the SpinCo Group) as of January 1, 2024. From and after January 1, 2024, the RSP Mirror Plan, the Mirror Deferred Compensation Plans and the members assume all of the SpinCo Group that sponsor account balances accumulated by Continuing Echo Business Employees under the Emerson 401(k) Plan (exclusive of any portion of such plansaccount balances which are paid or otherwise withdrawn prior to the date of transfer described herein) upon the transfer described herein. Following the Closing, as applicable, shall be responsible for all obligations and Liabilities (including, for each Continuing Echo Business Employee who is primarily employed in the avoidance of doubt, the obligation to defend claims related to benefits and/or benefits eligibility) with respect to, or in any way related to, the Liabilities transferred under this Section 5(b), whether accrued before, on or after January 1, 2024. The plan documents for the RSP Mirror Plan and the Mirror Deferred Compensation Plans adopted on January 1, 2024 shall reflect the service crediting requirements described in Section 4(d). SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for, and SpinCo shall indemnify and defend the Parent Group against, any and all claims related to (x) the establishment of, or transfer of Liabilities (and Assets, where applicable) to, the RSP Mirror Plan or the Mirror Deferred Compensation Plans, and/or the members of the SpinCo Group, and/or (y) any amendments to, or termination of, the RSP Mirror Plan or the Mirror Deferred Compensation Plans. For the avoidance of doubt, SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for all Liabilities arising from clause (x) or (y). Employees, Former Employees, and Legacy Former Employees who otherwise meet the eligibility requirements of the BW RSP and the Deferred Plans U.S. shall be eligible to participate in the BW RSP Newco 401(k) Plan (or, if applicable, such other tax-qualified defined contribution retirement plan in which similarly situated U.S. employees of Newco and its Subsidiaries are eligible to participate in from time to time) in accordance with the Deferred Plans through December 31, 2023, unless otherwise mutually agreed by the Parties or as otherwise required by applicable Law; provided that SpinCo shall continue to reimburse Parent promptly for the full cost terms of any benefits provided under such BW RSP and the Deferred Plans (including expenses) and pay Parent for all administrative and other expenses associated with such continued participation in the BW RSP and the Deferred Plansplan.

U.S. Defined Contribution Plans. Effective as of January 1, 2024, (i) As of Closing, ▇▇▇▇▇▇ shall cause the active participation by the U.S. Business Employees in the ▇▇▇▇▇▇, Inc. Retirement Savings Plan, the ▇▇▇▇▇▇, Inc. Union Savings Plan and the ▇▇▇▇▇▇, Inc. Associate Savings Plan (collectively, the "U.S. Savings Plans") to cease. ▇▇▇▇▇▇ shall (A) Parent shall transfer from as of Closing cause the BorgWarner Inc. Retirement Savings Plan (the “BW RSP”) to a tax-qualified defined contribution plan sponsored by SpinCo or another member trustees of the SpinCo Group Savings Plans to identify, in accordance with the applicable spinoff provisions set forth under Section 414(l) of the Code, the assets of the U.S. Savings Plans representing the full account balances of the U.S. Business Employees for all periods of participation through Closing (the “RSP Mirror Plan”) including, as applicable, all Assets employee contributions, employer contributions and Liabilities under the BW RSP with respect to Employees, Former Employees and Legacy Former Employees all earnings attributable thereto); and (B) as soon as practicable (but in no event later than nine months) after Closing, make all required filings and submissions to appropriate governmental authorities and all required amendments to the RSP Mirror Plan U.S. Savings Plans and related trust agreements necessary to provide for the transfer of assets described in this Section 8.7(g). The U.S. Savings Plans shall assume all such Assets and Liabilities from the BW RSP, (ii) be amended to provide that (A) Parent there shall transfer from the Deferred Plans to comparable plans sponsored by SpinCo or another member of the SpinCo Group (the “Mirror Deferred Compensation Plans”) all Liabilities under the Deferred Plans be no contributions thereto with respect to the U.S. Business Employees and Former Employees for periods after Closing and (B) all transferred employer contributions shall be fully vested. (ii) BDPH shall (A) give ▇▇▇▇▇▇ written notice of the Mirror Deferred Compensation name of the trustee of the defined contribution plan designated by BDPH to which the assets and liabilities for benefits of the U.S. Savings Plans shall assume all such Liabilities from the Deferred Compensation Plans, and (iii) SpinCo shall assume, and shall cause any other SpinCo Group member that sponsors the RSP Mirror Plan or a Mirror Deferred Compensation Plan to assume, all responsibility for funding and paying (or causing to be paid) the transferred Liabilities described in this Section 5(b) for any such plan that SpinCo or such other member sponsors. For the avoidance of doubt, the Assets and Liabilities are to be transferred with respect (the "BDPH U.S. Savings Plan"), accompanied by a copy of the most recent favorable IRS determination letter for such plan received by BDPH, as promptly as possible after Closing, but in any event prior to the BW RSP date on which such transfer is to occur; and (B) as soon as practicable (but in no event later than nine months) after Closing, make all required filings and submissions to appropriate governmental authorities. As soon as practicable after Closing, and pursuant to the procedures set forth below, ▇▇▇▇▇▇ shall include cause the allocable portion trustees of the U.S. Savings Plans to transfer to the trustee of the BDPH Savings Plan the following amount (the "U.S. Savings Total Transfer Amount"): (A) the full account balances (in proportion kind or in cash as determined by ▇▇▇▇▇▇, and notes for any loans to the aggregate U.S. Business Employees) of all U.S. Business Employees, whose account balances transferred to the RSP Mirror Plan) of the forfeiture account shall have been credited with appropriate earnings and revenue account accumulation held in the BW RSP as of January 1, 2024 (net of any applicable estimated unpaid plan expenses for the most recently completed plan year), and promissory notes evidencing plan loans, and neither the transfers described in this Section 5(b), nor the Distribution Date, shall be treated as a “separation from service” as defined under Treasury Regulation s. 1.409A-1(h) for purposes of the Deferred Plans and the Mirror Deferred Compensation Plans or as a “severance from employment” within the meaning of Treasury Regulation s. 1.401(k)-1(d)(2) for purposes of the RSP. After the transfer of Assets and Liabilities has occurred with respect to the BW RSP and the RSP Mirror Plan as contemplated by this paragraph, if on further review it is determined and agreed upon by the Parties that an incorrect amount of assets was transferred, there shall be a corresponding adjustment to correct any such mistake. The Liabilities transferred in accordance with this Section 5(b) shall cease to be Liabilities of the BW RSP (and the BW RSP Assets transferred in accordance with this Section 5(b)contributions, if any, shall cease attributable to be Assets the period ending at the close of business on the Closing Date, plus (B) earnings on such account balances attributable to the period from the Closing Date to U.S. Savings Transfer Date, as defined below, reduced by (C) any benefit or withdrawal payments in respect of the BW RSP), U.S. Business Employees prior to the Deferred Plans and the Parent Group (excluding the SpinCo Group) as of January 1, 2024. From and after January 1, 2024, the RSP Mirror Plan, the Mirror Deferred Compensation Plans and the members of the SpinCo Group that sponsor such plans, as applicable, shall be responsible for all obligations and Liabilities (including, for the avoidance of doubt, the obligation to defend claims related to benefits and/or benefits eligibility) with respect to, or in any way related to, the Liabilities transferred under this Section 5(b), whether accrued before, on or after January 1, 2024. The plan documents for the RSP Mirror Plan and the Mirror Deferred Compensation Plans adopted on January 1, 2024 shall reflect the service crediting requirements described in Section 4(d). SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for, and SpinCo shall indemnify and defend the Parent Group against, any and all claims related to (x) the establishment of, or transfer of Liabilities (and Assets, where applicable) to, the RSP Mirror Plan or the Mirror Deferred Compensation Plans, and/or the members of the SpinCo Group, and/or (y) any amendments to, or termination of, the RSP Mirror Plan or the Mirror Deferred Compensation Plans. For the avoidance of doubt, SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for all Liabilities arising from clause (x) or (y). Employees, Former Employees, and Legacy Former Employees who otherwise meet the eligibility requirements of the BW RSP and the Deferred Plans shall be eligible to participate in the BW RSP and the Deferred Plans through December 31, 2023, unless otherwise mutually agreed by the Parties or as otherwise required by applicable Law; provided that SpinCo shall continue to reimburse Parent promptly for the full cost of any benefits provided under such BW RSP and the Deferred Plans (including expenses) and pay Parent for all administrative and other expenses associated with such continued participation in the BW RSP and the Deferred Plans.U.S.

U.S. Defined Contribution Plans. (a) As of the Applicable Transfer Time, each Transferred Employee who is based primarily in the United States shall be fully vested in his or her account balances under any defined contribution plan and trust intended to qualify under Section 401(a) of the Code that is sponsored by Seller or any of its Affiliates (collectively, the “Seller DC Plan”). Effective as of January 1the Applicable Transfer Time or any subsequent date reasonably requested by Buyer (but not later than the 90th day following the Applicable Transfer Time), 2024each such Transferred Employee shall be eligible to elect a “direct rollover” (as described in Section 401(a)(31) of the Code) of his or her account balances (other than participant loans, (iwhich are addressed in the next sentence) (Aunder the Seller DC Plan to a defined contribution plan and trust intended to qualify under Section 401(a) Parent shall transfer from of the BorgWarner Inc. Retirement Savings Plan Code that is sponsored by Buyer or one of its Affiliates, in the form of cash (the “BW RSP”) to a tax-qualified defined contribution plan sponsored by SpinCo or another member of the SpinCo Group (the “RSP Mirror Buyer DC Plan”) all Assets ). Seller and Liabilities Buyer shall cooperate in good faith and use commercially reasonable efforts to enable each such Transferred Employee to be eligible to elect a direct rollover of any participant loans under the BW RSP with respect Seller DC Plan, in the form of participant loan notes, to Employeesthe Buyer DC Plan (provided such loan is current on payments) or to replace such loan under the Buyer DC Plan. (b) During the Relevant Period, Former Employees and Legacy Former Employees and (B) the RSP Mirror Buyer DC Plan shall assume all provide benefits to each such Assets and Liabilities from Transferred Employee that are not less favorable than the BW RSP, (ii) (A) Parent shall transfer from the Deferred Plans to comparable plans sponsored by SpinCo or another member of the SpinCo Group (the “Mirror Deferred Compensation Plans”) all Liabilities benefits provided under the Deferred Plans with respect Seller DC Plan as in effect immediately prior to Employees and Former Employees and (B) the Mirror Deferred Compensation Plans shall assume all such Liabilities from the Deferred Compensation Plans, and (iii) SpinCo shall assume, and shall cause any other SpinCo Group member that sponsors the RSP Mirror Plan or a Mirror Deferred Compensation Plan to assume, all responsibility for funding and paying (or causing to be paid) the transferred Liabilities described in this Section 5(b) for any such plan that SpinCo or such other member sponsors. For the avoidance of doubt, the Assets and Liabilities to be transferred Applicable Transfer Time with respect to the BW RSP shall include availability and amounts of loans, the allocable portion employer matching contribution and the vesting schedule (except that Buyer need not utilize the same method of calculating service going forward) for such contribution as reflected in proportion to the aggregate account balances transferred to summary plan descriptions (including the RSP Mirror Planappendices thereto) of the forfeiture account and revenue account accumulation held in the BW RSP as of January 1Seller DC Plan that have been provided to Buyer, 2024 (net of any applicable estimated unpaid plan expenses for the most recently completed plan year), and promissory notes evidencing plan loans, and neither the transfers described in this Section 5(b), nor the Distribution Date, shall be treated as a “separation from service” as defined under Treasury Regulation s. 1.409A-1(h) for purposes of the Deferred Plans and the Mirror Deferred Compensation Plans or as a “severance from employment” within the meaning of Treasury Regulation s. 1.401(k)-1(d)(2) for purposes of the RSP. After the transfer of Assets and Liabilities has occurred but not with respect to the BW RSP and the RSP Mirror Plan as contemplated by this paragraphform of benefits; provided, if on further review it is determined and agreed upon by the Parties however, that an incorrect amount of assets was transferred, there Buyer shall be a corresponding adjustment to correct any such mistake. The Liabilities transferred in accordance with this Section 5(b) shall cease to be Liabilities of the BW RSP (and the BW RSP Assets transferred in accordance with this Section 5(b), if any, shall cease to be Assets of the BW RSP), the Deferred Plans and the Parent Group (excluding the SpinCo Group) as of January 1, 2024. From and after January 1, 2024, the RSP Mirror Plan, the Mirror Deferred Compensation Plans and the members of the SpinCo Group that sponsor such plans, as applicable, shall be responsible for all obligations and Liabilities (including, for the avoidance of doubt, the have no obligation to defend claims related make any employer matching contribution to benefits and/or benefits eligibility) with respect tothe Buyer DC Plan on behalf of any Transferred Employee to the extent that such employer matching contribution would, or in any way related tothe reasonable judgment of Buyer, cause the Liabilities transferred under this Section 5(b), whether accrued before, on or after January 1, 2024. The plan documents for the RSP Mirror Plan and the Mirror Deferred Compensation Plans adopted on January 1, 2024 shall reflect the service crediting requirements described in Section 4(d). SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for, and SpinCo shall indemnify and defend the Parent Group against, any and all claims related to (x) the establishment of, or transfer of Liabilities (and Assets, where applicable) to, the RSP Mirror Buyer DC Plan or Buyer to fail to comply with applicable nondiscrimination requirements under the Mirror Deferred Compensation Plans, and/or the members of the SpinCo Group, and/or (y) any amendments to, Code or termination of, the RSP Mirror Plan or the Mirror Deferred Compensation Plans. For the avoidance of doubt, SpinCo and the other members of the SpinCo Group that sponsor such plans shall be solely and exclusively responsible for all Liabilities arising from clause (x) or (y). Employees, Former Employees, and Legacy Former Employees who otherwise meet the eligibility requirements of the BW RSP and the Deferred Plans shall be eligible to participate in the BW RSP and the Deferred Plans through December 31, 2023, unless otherwise mutually agreed by the Parties or as otherwise required by applicable Applicable Law; provided that SpinCo shall continue to reimburse Parent promptly for the full cost of any benefits provided under such BW RSP and the Deferred Plans (including expenses) and pay Parent for all administrative and other expenses associated with such continued participation in the BW RSP and the Deferred Plans.