Employee Benefits in Mergers and Acquisitions, 2012-2013 Edition

Employee Benefits in Mergers and Acquisitions is an essential tool in assisting both benefits and M&A professionals in handling complicated issues that are likely to arise in the wake of a merger or acquisition. Read more >

Format:

Author(s): Ilene Ferenczy
Media: Looseleaf
Pages: 650
Supplement Date: 09/20/2012
Publication Frequency: Published annually
Offer Number/PIN: 145480839X
ISBN: 9781454808398
ETA: Available: Item ships in 3-5 Business Days
Product Line: Aspen Publishers

Priority Code: Apply

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Contents
About the Author(s)
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Employee Benefits in Mergers and Acquisitions is an essential tool to assist both benefits specialists and mergers and acquisitions professionals examine every major employee benefits concern likely to arise in the wake of a merger or an acquisition, including:

Legal and tax compliance issues
Strategies to avoid costly litigation
Sound and reliable business practices for administering benefits and compensation plans in a M&A setting
And much more!

The 2012 -2013 Edition updates the coverage of legislative and regulatory developments in the past year that affect employee benefits in mergers and acquisitions, including:

The effects of the Pension Protection Act of 2006 (PPA), the Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART), the Worker, Retiree, and Employer Recovery Act of 2008 (WRERA), and the Patient Protection and Affordable Care Act (PPACA) on plans involved in business transactions
Discussion of the plan fiduciaries' responsibilities in relation to the service provider fee disclosure
The PPA-mandated IRS and DOL guidance and its effect on plan administration and issues in mergers and acquisitions
The final regulations under Code Section 415 on maximum benefits and includible plan compensation
Information regarding the final IRS regulations concerning 401(k) automatic enrollment
The latest guidance relating to the American Jobs Creation Act of 2004 on nonqualified deferred compensation and other executive compensation
Comprehensive modifications to the Internal Revenue Code sections relating to 401(k) plans to reflect the guidance relating to Roth 401(k) provisions
And much more!

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: Welcome to the Family - Assimilating Benefits for New Employees in an Asset Acquisition

Ilene Ferenczy

Ilene H. Ferenczy, J.D., CPC, APA, is the managing partner of Ferenczy + Paul LLP, an employee benefits law firm with offices in Atlanta, Georgia and Sacramento, California. Ms. Ferenczy advises clients on all types of employee benefit plans, particularly focusing her practice on qualified retirement plans, benefits issues in mergers and acquisitions, and advising third-party administrators of employee benefit programs on technical and practice issues. Having become an attorney after more than ten years as a third-party administrator, she brings a unique and practical approach to her advice. She is a member of the State Bars of Georgia and California, and holds designations as a Certified Pension Consultant from the American Society of Pension Professionals and Actuaries (ASPPA) and Accredited Pension Administrator from the National Institute of Pension Administrators.

She is a nationally known speaker on benefits issues, and has authored more than 70 articles for publications such as the Journal of Pension Benefits (where she is the Co-Editor-in-Chief), the Journal of Taxation of Employee Benefits, and The ASPPA Journal. The 2012-2013 edition of her book, Employee Benefits in Mergers and Acquisitions, an Aspen publication, was released in the fall of 2012. Ms. Ferenczy also authored three textbooks about defined contribution plans for ASPPA's education and examination program, and The Plan Termination Answer Book, now in its fourth edition. In addition to being a frequent live presenter, she has also recorded numerous webcasts and other e-learning tools for several organizations. Ms. Ferenczy is an adjunct professor in the College of Law at Georgia State University in Atlanta, Georgia, and on the Employee Benefits Advisory Board of the John Marshall Law School Center for Tax Law and Employee Benefits in Chicago, Illinois.

Ms. Ferenczy is the first female co-chair of ASPPA's Government Affairs Committee. She works with ASPPA to lobby for favorable pension legislation and workable DOL, IRS, and PBGC guidance in relation to retirement plans, is a member of the Management Team of the organization, and is a former member of the Board of Directors. Ms. Ferenczy is the 2007 recipient of ASPPA's Educator of the Year Award. In 2012, Ms. Ferenczy was elected to membership as a Fellow in the American College of Employee Benefits Counsel, the highest honor awarded to ERISA lawyers.

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