EMPLOYEE BENEFITS AND OTHER EMPLOYMENT MATTERS ALLOCATION AND SEPARATION AGREEMENT

Exhibit 10.39

EMPLOYEE BENEFITS AND OTHER EMPLOYMENT MATTERS

ALLOCATION AND SEPARATION AGREEMENT

BY AND AMONG

HYATT CORPORATION

HYATT GAMING MANAGEMENT, INC.

H GROUP HOLDING, INC.

HCC CORPORATION

AND

GRAND VICTORIA CASINO & RESORT, L.P.

Effective as of July 1, 2004

 

TABLE OF CONTENTS

 

Schedule 1

Schedule 2

 

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EMPLOYEE BENEFITS AND OTHER EMPLOYMENT MATTERS

ALLOCATION AND SEPARATION AGREEMENT

THIS EMPLOYEE BENEFITS AND OTHER EMPLOYMENT MATTERS ALLOCATION AND SEPARATION AGREEMENT (this “ Agreement ”) is made and entered into as of July 1, 2004, by and among HYATT CORPORATION, a Delaware corporation (“ Hyatt ”), HYATT GAMING MANAGEMENT, INC. a Nevada corporation (“ HGMI ”), H GROUP HOLDING, INC., a Delaware corporation (“ H-Group ”), HCC CORPORATION, a Nevada corporation (“HCC”) and GRAND VICTORIA CASINO & RESORT, L.P., a Delaware limited partnership (“Grand Victoria”), effective as of the Closing (as defined below).

RECITALS

WHEREAS, H-Group is currently the direct or indirect parent corporation of Hyatt, HGMI, and HCC (among other entities) and the indirect parent of the general partner of Grand Victoria; and

WHEREAS, H-Group is being restructured effective as of June 30, 2004 pursuant to a Master Distribution Agreement and various ancillary agreements (the “Spin-Offs”); and

WHEREAS, as part of the Spin-Offs, the stock of Hyatt will be distributed to its stockholders, so that Hyatt will cease to be a subsidiary of H-Group and will no longer be under common control with the Gaming Group (as defined below); and

WHEREAS, prior to the Spin-Offs, Hyatt provided employee benefits and compensation to the employees of the hotels and the casino gaming business and performed all of the related administration of such programs; and

WHEREAS, after the Spin-Offs, all employees who provide services as part of the casino gaming business will be employed by the Gaming Group; and

WHEREAS, Hyatt, H-Group, HGMI, HCC and Grand Victoria have agreed to allocate the responsibilities among the parties following the Spin-Offs for certain matters relating to employees and employee compensation, benefits, labor and certain other employment matters pursuant to the terms and conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the promises and mutual covenants, agreements, undertakings and obligations set forth herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.1. Definitions . As used in this Agreement, the following terms shall have the meanings set forth or as referenced below. All references herein to “Article,” “Sections” or “Schedules” shall be deemed to be references to Articles or Sections hereof or Schedules hereto unless otherwise indicated.

“ Ancillary Agreement ” shall mean any agreement contemplated by the Master Distribution Agreement, and such other documents as the parties thereto shall mutually agree are required to effect the Spin-Offs.

“ Benefit Obligations ” shall have the meaning set forth in Section 4.3(c).

“ Closing ” shall mean June 30, 2004.

“ COBRA ” shall mean Code Section 4980B and ERISA Sections 601 through 608, and any applicable state law establishing employer requirements for continuation of health care, life insurance or other Welfare Plan benefits for the benefit of certain current and former employees or their dependents.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended, or any successor legislation.

“ Effective Date ” shall mean July 1, 2004.

“ Employee ” shall mean with respect to any entity, an individual who is considered, according to the payroll and other records of such entity, to be employed by such entity (or a parent or subsidiary), regardless of whether such individual is, at the relevant time, actively at work or on leave of absence (including vacation, holiday, sick leave, family and medical leave, disability leave, military leave, jury duty, layoff with rights of recall, and any other leave of absence or similar interruption of active employment that is not considered, according to the policies or practices of such entity, to have resulted in a termination of such individual’s employment).

“ Employer ” shall mean Hyatt, H-Group, HGMI, HCC or Grand Victoria, as the context indicates.

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended, or any successor legislation.

“ Gaming Business ” shall mean any casino gaming business or operation of Hyatt or its affiliates which, pursuant to the Master Distribution Agreement, is to be conducted by the Gaming Group immediately following the Closing. Solely for purposes of this Agreement, the H-Group Employees shall be deemed to be employees of the Gaming Business.

“ Gaming DSP ” shall mean the Hyatt Gaming Deferred Savings Plan.

 

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“ Gaming Employee ” shall mean any individual who (a) is a Transferred Employee, (b) is an employee of HCC or (c) is not either a Transferred Employee or an employee of HCC prior to the Closing but becomes an employee of H-Group, HGMI or HCC on or after the Closing, but excludes any Grand Victoria Employee.

“ Gaming Employment Agreements ” shall have the meaning set forth in Section 2.1(e).

“ Gaming 401(k) Plan ” shall have the meaning set forth in Section 3.1.

“ Gaming Group ” shall mean H-Group, HGMI, HCC, Grand Victoria and each direct or indirect subsidiary and parent company thereof.

“ Gaming Indemnitees ” shall mean each member of the Gaming Group and their respective directors, officers, employees, equityholders, agents, representatives, affiliates and each of the heirs, executors, successors and assigns of any of the foregoing.

“ Gaming Individual ” shall mean any individual who (a) is a Gaming Employee or (b) is a dependent or beneficiary of any Gaming Employee.

“ Gaming MSP ” shall mean the Hyatt Gaming Key Employee Matched Savings Plan.

“ Gaming Qualified Beneficiary ” shall mean any Gaming Individual (or his dependent) who, after the Closing, becomes a Qualified Beneficiary under any Gaming Medical/Dental Plan.

“ Gaming Welfare Plans ” shall mean the Welfare Plans maintained by HGMI, H-Group and HCC on or after the Closing to provide benefits to Gaming Individuals and Gaming Qualified Beneficiaries.

“ Grand Victoria ” shall mean the Grand Victoria Casino and Resort, L.P.

“ Grand Victoria Employee ” shall mean any individual who is an Employee of Grand Victoria at any applicable time.

“ Grand Victoria 401(k) Plan ” shall mean the Hyatt Gaming Retirement Savings Plan and its related trust, which on and after the Effective Date shall be known as the “Grand Victoria Casino & Resorts Retirement Savings Plan.”

“ HGMI ” shall mean Hyatt Gaming Management, Inc.

“ H-Group ” shall mean H Group Holding, Inc. and FMG, Inc., a wholly owned indirect subsidiary thereof.

“ H-Group Employee ” shall mean any individual who (a) is an employee of H-Group on or after the Effective Date and (b) each individual listed on Schedule 1 hereto.

“ Hyatt ” shall have the meaning set forth in the Preamble.

“ Hyatt 401(k) Plan ” shall mean the Hyatt Corporation Retirement Savings Plan and its related trust.

 

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“ Hyatt Indemnitees ” shall mean Hyatt and its subsidiaries and affiliates and their respective directors, officers, employees, equityholders, agents, representatives, affiliates and each of the heirs, executors, successors and assigns of any of the foregoing.

“ Hyatt Individual ” shall mean any individual who (a) is a Retained Employee, or (b) is a dependent or beneficiary of any Retained Employee.

“ Hyatt Qualified Beneficiary ” shall mean a Qualified Beneficiary who is not a Gaming Qualified Beneficiary and who, following the Closing, is or becomes a Qualified Beneficiary.

“ Hyatt RDICP ” shall mean the Hyatt Corporation Restricted Deferred Incentive Compensation Plan.

“ Hyatt Retained Business ” shall mean the hospitality and related businesses currently conducted by the Hyatt or its subsidiaries and to be conducted by Hyatt or its subsidiaries following the Closing and all aspects thereof, including, without limitation, the development, construction, ownership, management, franchising and leasing of hotels and other hospitality or hospitality-related assets and all activities related thereto.

“ Hyatt Retiree ” shall mean the individuals listed on Schedule 2 hereto.

“ Hyatt SERP ” shall mean the Hyatt Corporation Supplemental Employee Retirement Plan.

“ Hyatt Terminee ” shall mean any individual who was formerly employed in a Gaming Business by Hyatt or HCC and who terminated such employment prior to the Closing and is no longer employed by any entity that is a party to this Agreement.

“ Hyatt Terminee Qualified Beneficiary ” shall mean any Qualified Beneficiary who became a Qualified Beneficiary prior to the Closing under the Hyatt Medical/Dental Plan.

“ IRS ” shall mean the Internal Revenue Service.

“ Medical/Dental Plan ” shall mean a Welfare Plan providing medical and/or dental benefits to Employees and their dependents.

“ Plan ” shall mean any plan, policy, arrangement, contract or agreement providing compensation or benefits for any group of Employees or individual Employees (including former Employees) or the dependents or beneficiaries of any such Employee, whether formal or informal or written or unwritten, and including, without limitation, any means, whether or not legally required, pursuant to which any benefit is provided by an Employer any such Employee or the beneficiaries of any such Employee, existing as of the Closing or prior thereto.

“ Qualified Beneficiary ” shall mean an individual (or dependent thereof) who either (a) experiences a “qualifying event” (as that term is defined in Code Section 4980B(f)(3) and ERISA Section 603) while a participant in any Medical/Dental Plan or (b) becomes a “qualified beneficiary” (as that term is defined in Code Section 4980B(g)(1) and ERISA 607(3)) under any Medical/Dental Plan.

 

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“ Retained Employee ” shall mean any individual who (a) immediately prior to the Closing was an Employee of Hyatt and who remains an employee of Hyatt following the Closing, or (b) immediately prior to the Closing was an Employee of HCC and who becomes an Employee of Hyatt on and after the Closing.

“ Rev. Proc. 96-60 ” shall have the meaning set forth in Section 6.1(a).

“ Service Credit ” shall mean the period taken into account under any Plan for purposes of determining length of service or plan participation to satisfy eligibility, vesting, benefit accrual and similar requirements under such Plan.

“ Spin-Offs ” shall have the meaning set forth in the Recitals.

“ Master Distribution Agreement ” shall have the meaning set forth in the Recitals.

“ Termination Benefits ” shall have the meaning set forth in Section 2.4(a).

“ Transferred Employee ” shall mean any individual who (a) was an Employee of Hyatt, a subsidiary of Hyatt or an affiliate of Hyatt (other than a member of the Gaming Group) immediately prior to the Closing and who becomes, immediately after the Closing, an Employee of H-Group, HGMI or HCC, or (b) is a H-Group Employee listed on Schedule 1 hereto.

“ Welfare Plan ” shall mean any Plan which provides medical, health, disability, accident, life insurance, death, dental or any other welfare benefit, including, without limitation, any post-employment benefit, but excluding vacation benefits covered under Section 5.3.

ARTICLE II.

TRANSFER OF EMPLOYEES; EMPLOYMENT ALLOCATION;

TERMINATION BENEFITS

Section 2.1. Transfer of Employees .

(a) Allocating Employees . Hyatt, H-Group, HGMI and HCC shall take all steps necessary or appropriate so that:

(i) all of the Employees of Hyatt and its subsidiaries are allocated between the Hyatt Retained Business and the Gaming Business in accordance with the principles set forth in Sections 2.1(b) and (c) below;

(ii) all of the Employees of HCC are allocated between the Hyatt Retained Business and the Gaming Business in accordance with the principles set forth in Sections 2.1(b) and (c) below;

(iii) each individual who is allocated to the Gaming Business is, as of the Closing and immediately following the Closing, an Employee of one or more of H-Group, HGMI or HCC or a subsidiary thereof; and

(iv) each individual who is allocated to the Hyatt Retained Business is, as of the Closing and immediately following the Closing, an Employee of Hyatt or its subsidiaries.

 

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(b) Basis of Allocation . Employees shall be allocated between the Hyatt Retained Business and the Gaming Business as follows:

(i) Each Employee whose primary duties are related to the Gaming Business, including any Employee who is required to be licensed under state gaming laws, will be an Employee of H-Group, HCC, HGMI or Grand Victoria as appropriate;

(ii) Each Employee whose primary duties are related to the Hyatt Retained Business and who is not required to be licensed under state gaming laws will be an Employee of Hyatt or a subsidiary or affiliate thereof;

(iii) Each Employee whose primary duties relate to both the Gaming Business and the Hyatt Retained Business and who is not required to be licensed under state gaming laws will be an Employee of Hyatt or a subsidiary or affiliate thereof; and

(iv) Each individual who is listed on Schedule 1 hereto shall become an employee of H-Group, as indicated on Schedule 1.

(c) Ancillary Agreements . Hyatt, HGMI, H-Group and HCC agree to enter into an Ancillary Agreement pursuant to which Hyatt will provide for transitional services of Retained Employees for a transitional period following the Effective Date.

(d) Grand Victoria Employees . Notwithstanding anything to the contrary, all Grand Victoria Employees at the time of the Closing shall remain Grand Victoria Employees immediately following the Closing.

(e) Employment Agreements .

(i) As of the Effective Date, Hyatt shall assume all obligations and liabilities for, and arising under all written employment agreements and offer letters, if any, in each case with respect to Retained Employees (collectively referred to as the “ Hyatt Employment Agreements ”), and the members of the Gaming Group shall have no liability or obligation with respect thereto, except as herein expressly provided. Hyatt shall take, or cause to be taken, all action necessary and appropriate to assume, effective as of the Effective Date, all Hyatt Employment Agreements, with such changes as may be necessary to reflect the change in the employer thereunder and such other changes as Hyatt shall determine. To the extent feasible taking into account the changes in employer, such Hyatt Employment Agreements shall otherwise have the same terms and conditions as in effect immediately prior to the Effective Date, except that references to employment by or termination of employment with a member of the Gaming Group shall be changed to references to employment by or termination of employment with Hyatt and its affiliates.

(ii) As of the Effective Date, one or more members of the Gaming Group, as appropriate, shall assume all obligations and liabilities for and arising under all written employment agreements and offer letters, if any, in each case with respect to Transferred Employees and Grand Victoria Employees (collectively referred to as the “ Gaming Employment Agreements ”), and Hyatt shall have no liability or obligation with respect thereto after such assumption, except as herein expressly provided. The appropriate members of the Gaming Group shall take, or cause to be taken, all action necessary and appropriate to assume,

 

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effective as of the Effective Date, all Gaming Employment Agreements, with such changes as may be necessary to reflect the change in the employer thereunder and such other changes as the appropriate member of the Gaming Group shall determine. To the extent feasible taking into account the changes in employer, such Gaming Employment Agreements shall otherwise have the same terms and conditions as in effect immediately prior to the Effective Date, except that references to employment by or termination of employment with Hyatt and its affiliates shall be changed to references to employment by or termination of employment with the appropriate member of the Gaming Group.

(f) Tax Equalization Agreements . On the Effective Date HGMI hereby assumes and Hyatt hereby assigns all obligations that Hyatt may have under tax equalization agreements with Transferred Employees who are expatriates. As of the Effective Date, Hyatt shall pay to HGMI the amounts, if any that have been withheld from the Transferred Employees under any such tax equalization agreements.

Section 2.2. Allocations between Hyatt and the Gaming Group .

(a) Allocation of Responsibilities as Employer . On the Effective Date, except to the extent specifically assumed by Hyatt under this Agreement or any Ancillary Agreement, each member of the Gaming Group shall retain or assume, as the case may be, responsibility as Employer for the Transferred Employees and the Grand Victoria Employees, as applicable. On the Effective Date, except to the extent specifically allocated to the appropriate member of the Gaming Group under this Agreement or any Ancillary Agreement, Hyatt shall retain responsibility as employer for the Retained Employees.

(b) Assumption of Liabilities on Closing . Except as specifically provided in this Agreement, or as otherwise agreed by the parties hereto as of the Effective Date:

(i) The appropriate member of the Gaming Group shall assume all benefit obligations and all related rights in connection with any Plan with respect to the Transferred Employees and Grand Victoria Employees , and Hyatt shall have no further liability with respect thereto.

(ii) Hyatt shall retain all benefit obligations and all related rights which accrue after the Closing in connection with any Plan and with respect to Retained Employees and Hyatt Terminees, and no member of the Gaming Group shall have any liability with respect thereto.

Section 2.3. Service Credits .

(a) Closing Transfers . In connection with the Spin-Offs and for purposes of determining Service Credits under any Plan, Hyatt shall credit each Retained Employee and the appropriate member of the Gaming Group shall credit each Transferred Employee and Grand Victoria Employee with such Employee’s Service Credits and original hire date as reflected in the records of the other parties, if any, as of the Closing. Such Service Credits and hire date shall continue to be maintained as described in this Agreement for as long as the Employee does not terminate employment with Hyatt or the members of the Gaming Group or as otherwise may be required by applicable law or any applicable Plan.

 

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(b) Service Credits Following the Closing . Subject to the provisions of applicable law, (i) each member of the Gaming Group as appropriate may, in the case of Transferred Employees and Grand Victoria Employees, in its sole discretion, make such decisions as it deems appropriate with respect to determining Service Credits accrued after the Closing, and (ii) Hyatt may, in the case of Retained Employees, in its sole discretion, make such decisions as it deems appropriate with respect to determining Service Credits accrued after the Closing.

Section 2.4. Termination Benefits .

(a) No Termination Benefits . No Retained Employee or Transferred Employee shall be deemed to have become entitled to any benefits under any Plan, contract, agreement, statute, regulation or other arrangement that provides for the payment of severance pay, salary continuation, pay in lieu of notice, unused vacation pay, or similar benefits in connection with actual or constructive termination of employment or alleged actual or constructive termination of employment (collectively, “ Termination Benefits ”) as a result of any actions taken pursuant to this Article II or otherwise as a result of the consummation of the transactions contemplated by the Master Distribution Agreement.

(b) Hyatt Liabilities . Effective as of the Closing, Hyatt shall retain all liabilities relating to or arising out of claims made by or on behalf of Retained Employees and Hyatt Terminees, who were employed by Hyatt (including the beneficiary, dependent or alternate payee of such individual) for, or with respect to, Termination Benefits relating to the actual or constructive termination or alleged actual or constructive termination of employment of any Retained Employee or Hyatt Terminee with the Hyatt Retained Business, whether before, on or after the Closing.

(c) Gaming Liabilities . Effective as of the Closing, each member of the Gaming Group shall retain all liabilities relating to or arising out of claims made by or on behalf of their respective Gaming Employees and any Hyatt Terminees, who were employed by a Gaming Group Member (including the beneficiary, dependent or alternate payee of such individual) for, or with respect to, Termination Benefits relating to the actual or constructive termination or alleged actual or constructive termination of employment of any Gaming Employee or Hyatt Terminee with the Gaming Business, whether before, on or after the Closing.

ARTICLE III.

401(K) PLANS

Section 3.1. Establishment of Gaming 401(k) Plan . On or before the Effective Date, HGMI shall establish, or cause to be established a defined contribution plan that is intended to be tax-qualified under Code Section 401(a), and a separate trust that is intended to be exempt from taxation under Code Section 50l(a)(l) (the “Gaming 401(k) Plan”). On or before the Effective Date, H-Group and HCC shall adopt and become participating employers in the Gaming 401(k) Plan.

Section 3.2. Transfer and Acceptance of Account Balances . As soon as practicable after the Effective Date, Hyatt shall cause the accounts, including promissory notes related to outstanding participant loans, if any, of the Gaming Employees, Hyatt Terminees (or their beneficiaries) and the H-Group Employees under the Hyatt 401(k) Plan to be transferred to the Gaming 401(k) Plan, and HGMI shall cause such transferred accounts and the applicable promissory notes to be accepted by the Gaming 401(k) Plan. HGMI and Hyatt acknowledge and agree that such transfer of assets and liabilities comply with Sections 401(a)(12), 414(l) and 411(d)(6) of the Code and the regulations thereunder.

 

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Section 3.3. No Distributions . No distribution of account balances shall be made to any Transferred Employee or Grand Victoria Employee solely on account of the Spin-Offs from the Hyatt 401(k) Plan, the Gaming 401(k) Plan or the Grand Victoria 401(k) Plan.

Section 3.4. Information . Hyatt shall provide HGMI, as soon as practicable, with a list of Gaming Employees, Hyatt Terminees and applicable alternate payees and beneficiaries who, to the best knowledge of Hyatt, were participants in or otherwise entitled to benefits under the Hyatt 401(k) Plan on the Closing, together with a listing of each participant’s Service Credits under the Hyatt 401(k) Plan and such participant’s account balance and investment elections.

Section 3.5. Regulatory Filings . In connection with the plan-to-plan transfer described in this Article III, Hyatt and HGMI shall cooperate in making any and all appropriate filings required by the IRS, or required under the Code, ERISA or any applicable regulations, and take all such action as may be necessary and appropriate to cause such plan-to-plan transfer to take place as soon as practicable after the establishment of the Gaming 401(k) Plan.

Section 3.6. Allocation of Pre- and Post-Closing Contributions .

(a) With respect to payroll periods commencing on or after January 1, 2004, but prior to the Effective Date all contributions to be made on behalf of Hyatt Individuals, Gaming Employees, Hyatt Terminees and H-Group Employees shall be made by Hyatt in accordance with past practice to the Hyatt 401(k) Plan; provided, however, that as soon as practicable following the Effective Date, HGMI and HCC shall reimburse Hyatt for such contributions made on behalf of Employees of HGMI and HCC and Hyatt Terminees attributable to HGMI and HCC, but only to the extent HGMI or HCC (or any predecessor employer) has not already reimbursed Hyatt for such contributions prior to the Effective Date. Hyatt shall remain liable for contributions for Hyatt Individuals and H-Group Employees for all payroll periods commencing prior to the Effective Date. HGMI and HCC shall be responsible for any matching contributions due for 2004 and Hyatt shall not be responsible for any portion thereof.

(b) All contributions to be made under the Hyatt 401(k) Plan with respect to Hyatt Individuals for payroll periods commencing after the Closing will be the responsibility of Hyatt pursuant to the terms of the Hyatt 401(k) Plan. All post-Closing contributions under the Gaming 401(k) Plan with respect to Gaming Individuals for payroll periods commencing after the Closing will be the responsibility of H-Group, HGMI or HCC, as appropriate, pursuant to the terms of the Gaming 401(k) Plan.

Section 3.7. Qualification of Plans and Other Liabilities .

(a) Gaming Group 401(k) Plan . HGMI, HCC and H-Group shall be responsible for all liabilities incurred as a result of any failure of the Gaming 401(k) Plan to be qualified under Section 401(a) of the Code, or other liability (including, without limitation, all liabilities relating to or arising out of claims made by or on behalf of participants therein for, or with respect to, benefits under such Plan) with respect to Gaming Individuals.

(b) Hyatt 401(k) Plan . Hyatt shall be responsible for all liabilities incurred as a result of any failure of the Hyatt 401(k) Plan to be qualified under Section 401(a) of the Code, or other liability (including, without limitation, all liabilities relating to or arising out of claims made by or on behalf of participants therein for, or with respect to, benefits under such Plan) with respect to Hyatt Individuals.

 

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(c) Qualification Failures . The parties hereto agree that to the extent any of them becomes aware that any such Plan fails or may fail to be so qualified, it shall notify the other party and the parties shall cooperate and use best efforts to avoid such disqualification, including using any applicable compliance resolution program under Revenue Procedure 2003-44, or similar programs, and taking any steps available pursuant to such program to avoid disqualification.

Section 3.8. Beneficiary Designation . All beneficiary designations made by Gaming Employees and Hyatt Terminees under the Hyatt 401(k) Plan shall be transferred to and be in full force and effect under the corresponding Gaming 401(k) Plan, until such beneficiary designations are replaced or revoked in accordance with the terms of the Gaming 40l(k) Plan by the Gaming Employees or Hyatt Terminees who made the beneficiary designation.

ARTICLE IV.

NONQUALIFIED DEFERRED COMPENSATION PLANS

Section 4.1. Establishment of Gaming Nonqualified Deferred Compensation Plans . On or prior to the Effective Date, HGMI shall establish two nonqualified deferred compensation plans, the Gaming DSP and the Gaming MSP, for the benefit of certain Gaming Employees, Grand Victoria Employees and the Hyatt Terminees. HGMI shall also establish, or cause to be established, a separate rabbi trust to form a part of the Gaming MSP and the Gaming DSP. On or prior to the Effective Date, H-Group, HCC and Grand Victoria shall adopt the Gaming MSP and Gaming DSP and become participating employers thereunder.

Section 4.2. Transferred Elections . All participants in the Gaming DSP and Gaming MSP who, immediately prior to Closing, participated in the Hyatt DSP and Hyatt MSP will have their deferral elections, beneficiary elections and all other elections automatically transferred and be applicable to the Gaming DSP and Gaming MSP as of the Effective Date.

Section 4.3. Allocation and Assumption of Liabilities .

(a) Gaming DSP and MSP . As of the Effective Date, Hyatt shall determine the amount of liabilities under the Hyatt DSP and Hyatt MSP attributable to Gaming Employees, Grand Victoria Employees and Hyatt Terminees, including employee contributions for payroll periods commencing prior to the Effective Date, but not made as of the Effective Date. As soon as administratively practicable thereafter, Hyatt shall pay to the appropriate member of the Gaming Group an amount equal to such liabilities either directly or through a trust to trust transfer of such amounts from the rabbi trusts established under the Hyatt DSP and Hyatt MSP to the rabbi trust established by HGMI under Section 4.1. Coincident with the receipt of the transfer of such amounts, each member of the Gaming Group shall unconditionally and irrevocably assume all liabilities described in this paragraph and all responsibilities and obligations relating to, arising out of, or resulting from such liabilities with respect to the Gaming Employees, Grand Victoria Employees and Hyatt Terminees attributable to such member of the Gaming Group so that all such liabilities associated with the Hyatt Terminees, Gaming Employees and Grand Victoria Employees are assumed by the members of the Gaming Group. As of the Effective Date, the Transferred Employees shall cease all future participation in the Hyatt DSP and Hyatt MSP. Each member of the Gaming Group shall be responsible for the matching contributions due for 2004 under the Gaming DSP, Gaming MSP, Hyatt DSP and Hyatt MSP and Hyatt shall not be responsible for any portion thereof.

 

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(b) Contributions . As soon as practicable following the Effective Date, HGMI and HCC shall reimburse Hyatt for any contributions actually made by Hyatt to the Hyatt DSP and Hyatt MSP for the payroll periods commencing on or after January 1, 2004, but prior to the Effective Date with respect to Employees of HGMI and HCC and Hyatt Terminees attributable to HGMI and HCC, but only to the extent that HGMI or HCC (or any predecessor employer) has not previously reimbursed Hyatt for such contributions prior to the Effective Date.

(c) Hyatt Retirees . As of the Effective Date, Hyatt shall assign and H-Group shall unconditionally and irrevocab