Form Apa - Asset Purchase Agreement Page 27
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immediately prior to the Closing Date is covered under any Employee Plan in any
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capacity.
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(ii)
"Retirement Plan" shall mean the Nestlé USA
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Retirement Plan, as in existence on the Closing Date or as it may be amended.
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(iii)
"Savings Plan" shall mean the Nestlé USA 401(k)
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Savings Plan, as in existence on the Closing Date or as it may be amended.
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(iv)
"TERP" shall mean the Nestlé USA Top Executive
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Retirement Program as in existence on the Closing Date or as it may be amended. [I am
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checking on whether any of the employees involved are currently covered under this
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program. If not, we can delete references to it.
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(b)
Retirement Plan and TERP
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Seller and/or its ERISA Affiliates shall retain the sponsorship of the
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Retirement Plan and TERP and Seller, its ERISA Affiliates and/or the trust related to the
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Retirement Plan, as applicable, shall retain all the assets of and liabilities attributable to
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the Retirement Plan and the TERP. As of the Closing Date, no further benefits shall
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accrue for any Transferred Employee under the Retirement Plan or TERP. Distributions
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under the Retirement Plan and TERP shall be made in accordance with their terms, as
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they may be amended (in general, under their current terms distributions would be
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delayed until such Transferred Employee terminates employment with Buyer). Except as
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required by law, the Seller and/or its ERISA Affiliates shall have no obligation to vest
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any Transferred Employee under the Retirement Plan and TERP as a result of the
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transactions contemplated hereby.
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(c)
Savings Plans
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Except as otherwise provided herein, Seller and/or its ERISA Affiliates
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shall retain the sponsorship of the Savings Plan, and Seller, its ERISA Affiliates and/or
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the trust related to the Savings Plan, as applicable, shall retain all the assets of and
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liabilities attributable to the Savings Plan. Effective as of the Closing Date, contributions
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to the Savings Plan made by Seller on behalf of the Transferred Employees shall cease.
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The Closing Date shall be the date of "termination of employment" of each Transferred
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Employee under the Savings Plan for all purposes, including eligibility for the
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commencement of distributions, except to the extent that commencement of distributions
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is restricted by law, including any applicable provision of ERISA or the Code. Except as
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required by law, the Seller and/or its ERISA Affiliates shall have no obligation to vest
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any Transferred Employee under the Savings Plan as a result of the transactions
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contemplated by the Asset Purchase Agreement. If Buyer and Seller agree, the vested
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account balances of the Transferred Employees under such Savings Plan may be
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transferred to a plan maintained by Buyer.
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Form APA.doc
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