Employee Benefits in Mergers & Acquisitions, 2011-2012 Edition

Mergers & Acquisitions

Employee Benefits in Mergers and Acquisitions, 2024-2025 Edition

By Ilene Ferenczy
Wolters Kluwer Legal & Regulatory U.S.

Specifications

ISBN-13
9781543882063
Publisher
Wolters Kluwer Legal & Regulatory U.S.
Format
Loose-leaf , 650 pages
Jurisdiction
U.S. ? Countri(es) for reference only

Details

This comprehensive, easy-to-use book provides expansive coverage of employee benefits issues that arise as a result of mergers and acquisitions, including analysis of the required legal and tax compliance strategies to avoid costly litigation and the soundest business practices for administering benefits and compensation plans in a merger and acquisition setting. It is intended to guide benefits experts who have little experience with mergers and acquisitions and acquisitions specialists who have little background in benefits administration.

Table of Contents

1. Introduction

  • Transactions and Benefits
  • Transactions and Human Resources
  • Approach
  • Some Terms of Art and Conventions
  • The Art and Confusion of Transactions
  • Due Diligence: Making Sure That What You See Is What You Get
  • Qualified Retirement Plans: Limiting Liability While Retaining Tax Benefits
  • ESOPs: Transactions Involving Plans with Employer Stock
  • Health and Welfare: Keeping These Plans as Healthy as the Employees
  • Executive Compensation: Handling Management in Transition
  • Employment Law and Labor Law: Transitioning Employees

2. Mergers and Acquisitions - An Overview

  • Structure of the Acquisition
  • Asset Acquisitions
  • Stock Acquisitions
  • Mergers
  • Spin-offs, Consolidations, and Recapitalizations
  • Corporate Law Considerations
  • Securities Law Considerations
  • Compliance with Hart-Scott-Rodino Antitrust Improvements Act of 1976
  • Compliance with Worker Adjustment and Retraining Notification Act

3. Due Diligence

  • Defining Due Diligence
  • Scope of Benefits Due Diligence
  • Representations, Warranties, and Indemnifications
  • Reviewing the Benefit Programs
  • Reporting Due Diligence Findings

4. Qualified Plans

  • What Is a Qualified Plan?
  • Purchasing a Company with a Qualified Plan
  • Selling a Company with a Qualified Plan
  • Correcting Qualification Failures
  • Other Qualified Plan Issues

5. Retirement Plan Coverage Issues

  • Coverage Requirements
  • How a Corporate Transaction Affects Coverage
  • Resolving a Coverage Problem During or at the End of the Transition Period
  • Qualified Separate Lines of Business
  • Interaction Between Coverage Rules and Participation Rules
  • Correcting Coverage Defects After Year-End

6. Defined Contribution Plans

  • Pensions Versus Nonpensions
  • General Defined Contribution Rules
  • Defined Contribution Pension Plans
  • Profit Sharing Plans
  • General-Tested and Cross-Tested or New Comparability Plans
  • Contributions for the Portion of the Year Before the Acquisition
  • 401(k) Plans
  • Stock Bonus Plans
  • Eligible Individual Account Plans
  • Participant Direction of Investments and Fiduciary Liability

7. Defined Benefit Plans

  • What Is a Defined Benefit Plan?
  • ERISA Title IV and the PBGC
  • Funding Considerations in an Acquisition
  • Liability or Benefit on Assumption of Plan
  • PBGC Reportable Events in an Acquisition
  • Withdrawing from Participation in a Plan Covering Controlled Group Members
  • Plan Terminations
  • Unions and Multiemployer Plans
  • Cash Balance Plans

8. Employee Stock Ownership Plans

  • What Is an ESOP?
  • Qualifying Employer Securities
  • Comparison of ESOPs with Other Qualified Plans That Hold Employer Stock
  • KSOPs
  • How a Nonleveraged ESOP Works
  • How Leveraged ESOPs Work
  • Dividends
  • Selling Stock to an ESOP: Corporate Refinancing
  • S Corporation ESOPs
  • Acquisition of ESOP Securities by an Independent Buyer
  • What Happens to the Plan: Buyer's Options for the Plan on a Stock Acquisition
  • Asset Purchases from an ESOP
  • ESOPs in Publicly Traded Companies

9. Health and Welfare Issues

  • Types of Health and Welfare Plans
  • Insured Versus Noninsured or Self-Funded Plans
  • ERISA Coverage of Health and Welfare Plans
  • Health Issues in Acquisitions
  • Welfare Plan Issues in Acquisitions
  • Continuation of Health Benefits Under COBRA
  • Obligations to Employees Under HIPAA Portability Rules

10. Executive Compensation

  • Stock Option Plans
  • Nonstock Executive Compensation
  • Taxation of Deferred Compensation Under Code Section 409A
  • Golden Parachute Issues
  • Million-Dollar Cap on Executive Compensation
  • Employment Agreements
  • Changes to Executive Compensation Under the Sarbanes-Oxley Act

11. Employment Law

  • Stock and Asset Acquisitions in the Employment Law Context
  • Due Diligence with Respect to Employment Law
  • Discrimination Issues
  • Impact of Plant Closing Laws on Mergers and Acquisitions
  • Successorship Issues Related to Union Matters
  • Family and Medical Leave Act Issues
  • Wage and Hour Issues
  • ERISA Issues in Employee Communications
  • Miscellaneous Issues

Appendix A: Benefit Plans Preliminary Acquisition Due Diligence: Checklist of Items to Review

Appendix B: Acquisition Agreement: Sample Benefits Representations and Warranties

Appendix C: Nondiscrimination Checklist and Flowchart

Appendix D: Due Diligence Work Plan

Appendix E: Detailed Due Diligence Work Program

Appendix F: Sample Due Diligence Report

Appendix G: Sample Agreement of Plan Merger

Appendix H: Health and Welfare Benefits: Checklist for Mergers and Acquisitions Issues

Appendix I: Sample Termination Agreement

Appendix J: Sample WARN Notice

Appendix K: Defined Contribution Plan Abstract

Appendix L: Compliance with the Fair Labor Standards Act As Amended

Appendix M: Murder on the M&A Express: How Benefits Killed the Deal

Appendix N: PPACA Compliance Checklist for Group Health Plans

Appendix O: Sample Qualified Separate Lines of Business (QSLOB) Notice

About the Author

Ilene Ferenczy


Ilene H. Ferenczy, Esq., CPC, APA, is the managing member of The Law Offices of Ilene H. Ferenczy, LLC, a boutique law firm in Atlanta, Georgia, that specializes in employee benefits, including qualified pension and profit sharing plans, executive compensation, and other benefits.

A member of the employee benefits community since 1977, Ms. Ferenczy holds the designations of Certified Pension Consultant from the American Society of Pension Professionals and Actuaries (ASPPA) and Accredited Pension Administrator from the National Institute of Pension Administrators (NIPA). Ms. Ferenczy practiced for many years as a third-party administrator of qualified plans before becoming an attorney. Her expertise includes the design and implementation of retirement plans, advising clients on retirement plan issues in relation to mergers and acquisitions, representing companies and plans under audit by the various governmental agencies and resolving errors in a cost-effective manner, and consulting with clients regarding a myriad of planning, taxation, and fiduciary liability issues.

Ms. Ferenczy is a nationally known speaker and has authored more than 60 articles on qualified plan topics for national journals, including the Journal of Taxation of Employee Benefits, the Journal of Mergers and Acquisitions, The ASPPA Journal, and the Journal of Pension Benefits. She is Co-Editor-in-Chief of the Journal of Pension Benefits. Ms. Ferenczy is also the author / compiler of three textbooks for ASPPA’s professional designation program and the co-author of Aspen Publisher’s Pension Termination Answer Book. The first female co-chair of ASPPA’s Government Affairs Committee, she helps oversee comment letters to the government organization and lobbying efforts to Congress and the Administration in relation to benefits maters. She is also a member of ASPPA’s Board of Directors and a trustee of the ASPPA Pension Education and Research Foundation, as well as the 2007 recipient of ASPPA’s Educator of the Year Award.

Ms. Ferenczy is a magna cum laude graduate of UCLA, with a B.A. in History. She received two J.D. degrees, both summa cum laude, from Georgia State University College of Law and Western State University College of Law. She is admitted to practice law in Georgia and California and is a member of the Tax Section of the American, the Los Angeles County, and the Atlanta Bar Associations.

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