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Employee Benefits in Mergers and Acquisitions, 2016-2017 Edition

Employee Benefits in Mergers and Acquisitions, 2016-2017 Edition

Employee Benefits in Mergers and Acquisitions, 2016-2017 Edition

By Ilene H. Ferenczy
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Wolters Kluwer Legal & Regulatory U.S.
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Fully-updated to reflect the latest legislation, regulation, and IRS and DOL guidance, the 2016 -2017 Edition of Employee Benefits in Mergers and Acquisitions is designed for both benefits experts who have little experience with mergers and acquisitions issues and mergers and acquisitions specialists who have little background in benefits administration.

Comprehensive, yet easy-to-use, it provides the expert guidance you need to help ensure legal and tax compliance—and avoid costly litigation and penalties—as you work to integrate and administer the employee benefits programs of two or more companies.

Written by recognized authority Ilene H. Ferenczy, and a team of noted experts, Employee Benefits in Mergers and Acquisitions, 2016-2017 Edition has been updated to include:

  • The current status of the Patient Protection and Affordable Care Act (PPACA) on plans involved in business transactions, including information regarding new reporting requirements in relation to health plans
  • Discussion of the plan fiduciary’s responsibilities in relation to the service provider and participant fee disclosures
  • Discussion of the changes in process to the IRS’s procedures in relation to review of documents for tax-qualification
  • Updates to IRS rules for modification of safe harbor 401(k) plans during the plan year
  • The PPACA-mandated IRS and DOL guidance and its effect on plan administration and issues in mergers and acquisitions
  • The latest Supreme Court opinions relating to employee stock ownership plans (ESOPs) and the elimination of the Moench presumption of prudence in purchasing employer securities
  • And much more!


ISBN: 9781454872887
SKU: 10045203-7777
  • 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


Ilene H. Ferenczy, Esq., CPC, APA, is the managing member of Ferenczy Benefits Law Center LLP, a law firm with offices 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) and is a Fellow of the American College of Employee Benefits Counsel. 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 75 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 was also the author/compiler of three textbooks for ASPPA’s professional designation program and is a former author of Wolters Kluwer’s Pension Termination Answer Book. She was the first female co-chair of ASPPA’s Government Affairs Committee, where she helped  oversee comment letters to the government organizations and lobbying efforts to Congress and the Administration in relation to benefits matters.She  remains a senior advisor to the Committee. She is a member of ASPPA’s Leadership Committee and the 2007 recipient of ASPPA’s Educator of the Year Award.

Ms. Ferenczy is a past adjunct professor of employee benefits in the College of Law at Georgia State University in Atlanta, Georgia, and is on the Employee Benefits Advisory Board of the John Marshall Law School Center for Tax Law and Employee Benefits in Chicago, Illinois.

Ms. Ferenczy's extensive benefits experience and national reputation have qualified her to give testimony as an expert witness in Employee Retirement Income Security Act (ERISA) litigation and enabled the firm to be a member of the International Network of Boutique Law Firms.

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.