SUCH PLANS PURSUANT TO THEIR TERMS.
FOR PURPOSES OF THIS AGREEMENT, BUYER'S
EMPLOYEE BENEFIT PLANS INCLUDE, BUT ARE NOT LIMITED TO, ALL "EMPLOYEE BENEFIT
PLANS" WITHIN THE MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND EMPLOYEE FRINGE BENEFIT PROGRAMS
OF BUYER.
SELLER GROUP SHALL USE COMMERCIALLY REASONABLE EFFORTS, UPON BUYER'S
REQUEST, AND AT BUYER'S EXPENSE TO ASSIST IN THE TRANSITION OF AFFECTED
EMPLOYEES TO BUYER.
FROM AND AFTER THE CLOSING, SELLER GROUP SHALL (I) SPONSOR,
(II) ASSUME OR (III) RETAIN, AS THE CASE MAY BE, AND BE SOLELY RESPONSIBLE FOR
ALL EMPLOYMENT LIABILITIES WHETHER INCURRED BEFORE, ON OR AFTER THE CLOSING.
As soon as practicable following the Closing Date, Seller Group shall provide
Buyer with such documents as Buyer shall reasonably request to assure itself
that the accounts of the Affected Employees under the 3Com Corporation
401(k) Plan ("Seller Savings Plan") if distributed to such Affected Employees,
would be eligible rollover distributions and with such documents and other
information as Buyer shall reasonably request to assure itself that the Seller
Savings Plan and the trust established pursuant thereto are qualified and
tax-exempt under Sections 401(a) and 501(a) of the Code.
Effective as of the
Closing Date, each Affected Employee who was a participant in the Seller Savings
Plan shall cease to have any contributions made on his or her behalf, except for
contributions attributable to compensation earned on or before such date under
such Seller Savings Plan.
Each Affected Employee who is a participant in a
Seller Savings Plan shall be given the opportunity to "roll over" such account
balance by way of an eligible rollover distribution to the UTStarcom, Inc.
401(k) Plan (the "Buyer 401(k) Plan"), subject to the approval of the
administrator of the Buyer 401(k) Plan and in accordance with the provisions of
such Plan and applicable
9
Law.
Notwithstanding anything in this Agreement to the contrary, each Affected
Employee who was eligible to participate in a Seller Savings Plan will first
become eligible to participate in the Buyer 401(k) Plan as soon as reasonably
practicable after the Closing Date and pursuant to the terms of such plan.
(B)
SELLER GROUP AGREES AND ACKNOWLEDGES THAT
THE SELLING GROUP (AS DEFINED IN TREASURY REGULATION SECTION 54.4980B-9,
Q&A-3(A)) OF WHICH IT IS A PART (THE "SELLING GROUP") WILL CONTINUE TO OFFER A
GROUP HEALTH PLAN TO ITS EMPLOYEES AFTER THE CLOSING DATE TO THE EXTENT REQUIRED
BY LAW AND, ACCORDINGLY, THAT SELLER AND THE SELLING GROUP SHALL BE SOLELY
RESPONSIBLE FOR PROVIDING CONTINUATION COVERAGE UNDER THE CONSOLIDATED OMNIBUS
BUDGET RECONCILIATION ACT OF 1985, AS AMENDED ("COBRA") TO THOSE INDIVIDUALS WHO
ARE M&A QUALIFIED BENEFICIARIES (AS DEFINED IN TREASURY REGULATION
SECTION 54.4980B-9, Q&A-4(A)) WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT (COLLECTIVELY, THE "M&A QUALIFIED BENEFICIARIES").
THE MEMBERS
OF THE SELLER GROUP SHALL BE RESPONSIBLE FOR ALL COBRA OBLIGATIONS, LIABILITIES
AND CLAIMS RELATED TO M&A QUALIFIED BENEFICIARIES AND ALL OTHER QUALIFIED
BENEFICIARIES (AS DEFINED IN CODE SECTION 4980B(G)(1)) WITH