Common use of Pension Transfer Clause in Contracts

Pension Transfer. (1) Prior to Closing, Sellers shall take any actions necessary (including, if necessary, timely filing Form 5310-A) to adopt, establish and maintain a defined benefit pension plan within the meaning of Section 3(2)(A) of ERISA and subject to the minimum funding standards under Section 302 of ERISA and Section 412 of the Code (the “DPI Pension Plan”) and a related trust qualified under Section 501(a) of the Code (the “DPI Pension Trust”), which pension plan and trust shall be sponsored and maintained by DPI for the benefit of certain union Business Employees as set forth on Schedule 4.6(c)(1) (the “Eligible Union Company Employees”) and their beneficiaries who are benefiting as of the Closing Date under the Retirement Plan for Employees of B▇▇▇▇▇▇ & W▇▇▇▇▇ Commercial Operations (the “BWC Pension Plan”). Sellers shall provide Purchasers with drafts of the DPI Pension Plan and DPI Pension Trust for Purchasers’ review and comment at least ten (10) Business Days prior to adopting such plan and trust. Purchasers shall pay, or reimburse Sellers or their Affiliates to the extent any of them have paid, for all costs and expenses of the adoption and establishment of the DPI Pension Plan and the DPI Pension Trust, up to a maximum amount of eighty thousand dollars ($80,000) (the “Pension Formation Costs”). The DPI Pension Plan shall be formed and constituted by means of a spinoff from the BWC Pension Plan (the “Spinoff”) and shall include, without limitation, provisions for eligibility, benefit accrual and other rights and features identical to the BWC Pension Plan with respect to participants who are Eligible Union Company Employees and their beneficiaries. In the Spinoff, the eligibility, vesting and benefit accrual service and the benefits and benefit accruals of Eligible Union Company Employees and their beneficiaries shall be transferred from the BWC Pension Plan to the DPI Pension Plan, and the liabilities with respect to Eligible Union Company Employees and their beneficiaries under the BWC Pension Plan and its related trust (the “BWC Pension Trust”) shall be transferred from the BWC Pension Trust to the DPI Pension Trust, and there shall also be transferred from the BWC Pension Trust to the DPI Pension Trust an amount of assets as specified in Section 4.6(c)(2) below. At least fifteen (15) days prior to such transfer, Sellers shall provide Purchasers with information and calculations regarding the assets and liabilities to be transferred to the BWC Pension Trust, including the specific funds or other investments to be transferred, which shall be cash or cash equivalents or other investments approved by Purchasers. Purchasers shall take any actions necessary to assume the sponsorship and all assets, liabilities and obligations arising under or related to the DPI Pension Plan and the DPI Pension Trust, effective as of the Closing Date. (2) Prior to formation and constitution of the DPI Pension Plan, Sellers shall determine the estimated amount of assets that will be transferred from the BWC Pension Plan to the DPI Pension Plan, which shall equal 100% of the aggregate present value of accrued vested and nonvested benefits (as defined as the accumulated benefit obligation in Accounting Standards Codification Section 715 and which also equals the projected benefit obligation in Accounting Standards Codification Section 715) attributable to the Eligible Company Union Employees and their beneficiaries up to and including the Closing Date, determined by an actuary retained by Sellers (“Sellers’ Actuary”) utilizing the current GAAP assumptions and discount rate and interest rate sensitive assumptions as set forth on Schedule 4.6(c)(2) (the “Applicable Assumptions”) in order to effectuate a de minimis spinoff pursuant to § 1.414(1)-(1)(n)(2) of the Treasury Regulations (the “Estimated Spinoff Amount”). Sellers shall also use the Applicable Assumptions to determine the amount of a contribution to the BWC Pension Plan to restore the BWC Pension Plan’s then current unfunded percentage, after transfer of the Estimated Spinoff Amount to the DPI Pension Plan, to its level immediately before such transfer; Sellers shall make such contribution to the BWC Pension Plan no later than immediately after Closing; and Sellers shall provide Purchasers confirmation of the contribution (including the amount and the date of the contribution) no later than the two (2) Business Days after Closing. The de minimis spinoff from the BWC Pension Plan shall be made in accordance with Section 414(l) of the Code. Sellers shall provide Purchasers and the actuary retained by Purchasers (the “Purchasers’ Actuary”) Sellers’ calculations of the Estimated Spinoff Amount at least fifteen (15) days prior to Closing. Within fifteen (15) days following Closing, Sellers’ Actuary shall update the Estimated Spinoff Amount using the principles and methodologies set forth on Schedule 4.6(c)(2) and using actual applicable inputs at the Closing(the “Final Spinoff Amount”) and shall provide to Purchasers the Sellers’ calculations of such amount (“Sellers’ Spinoff Calculation”). Purchasers shall have fifteen (15) days following receipt of the Sellers’ Spinoff Calculation (which period will be tolled for Purchasers due to any lack of access to records caused by Sellers, or any of their respective Representatives, and lasting more than two (2) Business Days) to review the Sellers’ Spinoff Calculation. To the extent reasonably required to complete such review of the Sellers’ Spinoff Calculation, Sellers shall provide Purchasers and Purchasers’ Actuary with reasonable access during normal business hours to all the properties, working papers, books, records, contracts, documents, information, and Representatives relevant to the review or preparation of the Sellers’ Spinoff Calculation. Purchasers will deliver notice to Sellers on or prior to the fifteenth (15th) day (as tolled, if applicable) after receipt of the Sellers’ Spinoff Calculation specifying in reasonable detail, supported by a report prepared by the Purchasers’ Actuary, all disputed items with respect to the Sellers’ Spinoff Calculation (including the dollar amount(s), if applicable) and the basis therefor. If Purchasers fail to deliver such notice in such fifteen (15) day period (as tolled, if applicable), Purchasers will be deemed to have waived their right to contest the Sellers’ Spinoff Calculation, and the Final Spinoff Amount as set forth in the Sellers’ Spinoff Calculation will be final and binding for all purposes under this Agreement. If Purchasers notify Sellers of any objections to the Sellers’ Spinoff Calculation during such fifteen (15) day period (as tolled, if applicable), the Parties shall, within thirty (30) days following the date of such notice, attempt to resolve their differences and any written resolution by them as to any disputed amount will be final and binding for all purposes under this Agreement. If there is any good faith dispute between Sellers’ Actuary and Purchasers’ Actuary with respect to any actuarial or other calculation which gives rise to a disputed amount regarding the Final Spinoff Amount that is not in excess of one percent (1.0%) of the Final Spinoff Amount, such dispute shall be resolved by dividing the disputed amount in half and adding such amount to the lesser of the two amounts that originally gave rise to such dispute. If such disputed amount exceeds one percent (1.0%) of the Final Spinoff Amount and the Sellers’ Actuary and Purchasers’ Actuary are not able to resolve such dispute after using their reasonable best efforts to do so within thirty (30) days from the date Purchasers’ Actuary provides notice of its objection to the Sellers’ Spinoff Calculation, Sellers and Purchasers shall mutually agree on a third-party nationally recognized actuarial firm (the “Independent Actuary”), which has no professional relationship with any of the parties hereto or the Sellers’ Actuary or Purchasers’ Actuary, to resolve such dispute. Within thirty (30) days after being engaged to review the disputed matter in accordance with the terms and conditions of this Agreement, the Independent Actuary shall determine only those matters in dispute and shall deliver a written report to Sellers and Purchasers as to the disputed matters. Upon resolution of the disputed matter, Sellers’ Actuary shall recompute the Final Spinoff Amount taking into account the conclusions of the Independent Actuary as to such disputed matters. The accuracy of such computation shall be subject to confirmation by the Purchasers’ Actuary. Notwithstanding the foregoing, in rendering its report to the Sellers and Purchasers, the Independent Actuary shall not perform independent calculations but shall be permitted to review the information relied upon by Sellers’ Actuary and Purchasers’ Actuary in their presentations and any follow-up requested information with respect to the disputed matter. The decision of the Independent Actuary shall be conclusive and binding upon the parties as to any dispute for which it was appointed. The cost of the Independent Actuary shall be divided equally between Sellers and Purchasers. Each party shall be responsible for the cost of its own actuary. If the Final Spinoff Amount (as finally determined pursuant to this Section 4.6(c)(2)) is greater than the Estimated Spinoff Amount, Sellers shall cause the BWC Pension Plan to transfer to the DPI Pension Plan an amount equal to the difference between the Final Spinoff Amount and the Estimated Spinoff Amount within thirty (30) Business Days following the determination of the Final Spinoff Amount. If the Final Spinoff Amount (as finally determined pursuant to this Section 4.6(c)(2)) is less than the Estimated Spinoff Amount, Purchasers shall cause the DPI Pension Plan to transfer to the BWC Pension Plan an amount equal to the difference between the Final Spinoff Amount and the Estimated Spinoff Amount within thirty (30) Business Days following the determination of the Final Spinoff Amount. If, after determination of the Final Spinoff Amount, errors or changes in the data are discovered, which would have resulted in a Final Spinoff Amount that is at least 10% higher or lower than the agreed upon Final Spinoff Amount, the parties will work in good faith to transfer an amount of assets from the BWC Pension Plan to the DPI Pension Plan or from the DPI Pension Plan to the BWC Pension Plan, as appropriate to reflect the corrected Final Spinoff Amount. (3) During the Interim Period, Sellers shall inform the Pension Benefit Guaranty Corporation (the “PBGC”) of the proposed transaction, the proposed Spinoff, and the related transfer of assets to the DPI Plan, to the extent not already communicated to the PBGC.

Pension Transfer. (1i) Prior to Closingthe Closing Date, Sellers Buyer shall take any actions necessary (including, if necessary, timely filing Form 5310-A) to adopt, establish and or maintain a qualified defined benefit pension plan within the meaning or a portion of Section 3(2)(A) of ERISA and subject to the minimum funding standards under Section 302 of ERISA and Section 412 of the Code a qualified defined benefit plan (the “DPI Buyer Pension Plan”) that is identical in all material respects with the benefits, terms and a related trust qualified under Section 501(a) conditions of the Code qualified defined benefit pension plan maintained for the Business Employees immediately prior to the Closing Date (the “DPI Pension TrustPlan”), which for purposes of assuming the liabilities and providing pension benefits in respect of the Business Employees and make any and all filings and submissions to the appropriate Governmental Entities required to be made by it in connection with the transfer of assets described below and agrees to maintain such pension plan (including providing additional benefit accruals) (i) as required by the Collective Bargaining Agreements and trust (ii) otherwise for a period of not less than eighteen (18) months. The participation by Business Employees in the Pension Plan shall cease as of 11:59 PM Connecticut time on the Closing Date. Prior to the Closing Date, Buyer shall provide Seller a copy of Buyer’s most recent determination letter from the IRS with respect to the qualified status of the Buyer Pension Plan, and Seller shall provide Buyer with a copy of the most recent determination letter from the IRS with respect to the qualified status of the Pension Plan. Seller and Buyer shall reasonably cooperate to satisfy the Pension Plan trustee and Buyer Pension Plan trustee in connection with such transfer. Subject to the transfer of the Initial Pension Plan Transfer Amount, effective immediately following the Closing Date, the Buyer Pension Plan shall be sponsored and maintained by DPI responsible for all liabilities for the benefit of certain union benefits payable for Business Employees as set forth on Schedule 4.6(c)(1) (the “Eligible Union Company Employees”) and their beneficiaries who are benefiting as of immediately following the Closing Date under the Retirement Plan for Employees of B▇▇▇▇▇▇ & W▇▇▇▇▇ Commercial Operations (the “BWC Pension Plan”). Sellers shall provide Purchasers with drafts terms of the DPI Pension Plan and DPI all benefit payments to Business Employees shall be made from the Buyer Pension Trust for Purchasers’ review and comment at least ten (10) Business Days prior to adopting such plan and trustPlan. Purchasers shall payEffective immediately following the Closing Date, or reimburse Sellers or their Affiliates to the extent any of them have paid, for all costs and expenses of the adoption and establishment of the DPI Pension Plan and the DPI Pension Trust, up to a maximum amount of eighty thousand dollars ($80,000) (the “Pension Formation Costs”). The DPI Pension Plan shall be formed and constituted by means of a spinoff from liable to the BWC Buyer Pension Plan (for the “Spinoff”) and shall include, without limitation, provisions for eligibility, benefit accrual and other rights and features identical to the BWC Pension Plan with respect to participants who are Eligible Union Company Employees and their beneficiaries. In the Spinoff, the eligibility, vesting and benefit accrual service and the benefits and benefit accruals of Eligible Union Company Employees and their beneficiaries shall be transferred from the BWC Pension Plan to the DPI Pension Plan, and the liabilities with respect to Eligible Union Company Employees and their beneficiaries under the BWC Pension Plan and its related trust (the “BWC Pension Trust”) shall be transferred from the BWC Pension Trust to the DPI Pension Trust, and there shall also be transferred from the BWC Pension Trust to the DPI Pension Trust an amount of assets as specified in Section 4.6(c)(2) below. At least fifteen (15) days prior to such transfer, Sellers shall provide Purchasers with information and calculations regarding the assets and liabilities to be transferred to the BWC Pension Trust, including the specific funds or other investments to be transferred, Transfer Amount,” which shall be cash or cash equivalents or other investments approved by Purchasers. Purchasers shall take any actions necessary an amount equal to assume the sponsorship and all assets, liabilities and obligations arising under or related to the DPI Pension Plan and the DPI Pension Trust, effective as of the Closing Date. (2) Prior to formation and constitution of the DPI Pension Plan, Sellers shall determine the estimated amount of assets that will be transferred from the BWC Pension Plan to the DPI Pension Plan, which shall equal 100% of the aggregate present value of accrued vested and nonvested benefits (as defined as under the accumulated benefit obligation in Accounting Standards Codification Section 715 and which also equals Pension Plan of the projected benefit obligation in Accounting Standards Codification Section 715) attributable to the Eligible Company Union Business Employees and their beneficiaries up to and including the Closing Date, determined on a projected benefit obligation basis by an actuary retained by Sellers Seller (“Sellers’ Seller’s Actuary”) utilizing the current GAAP assumptions and used in Seller’s Form 10-K filing that most recently precedes the Closing Date (except for the discount rate and interest rate sensitive assumptions as set forth on Seller Schedule 4.6(c)(2) (6.6(i)(i)), provided, however, that in no event shall the “Applicable Assumptions”) amount so determined and transferred from the Pension Plan be in order to effectuate a de minimis spinoff pursuant to § 1.414(1)-(1)(n)(2) excess of the Treasury Regulations (the “Estimated Spinoff Amount”). Sellers shall also use the Applicable Assumptions amount permitted to determine the amount of a contribution to the BWC Pension Plan to restore the BWC Pension Plan’s then current unfunded percentage, after transfer of the Estimated Spinoff Amount to the DPI Pension Plan, to its level immediately before such transfer; Sellers shall make such contribution to the BWC Pension Plan no later than immediately after Closing; and Sellers shall provide Purchasers confirmation of the contribution (including the amount and the date of the contribution) no later than the two (2) Business Days after Closing. The de minimis spinoff from the BWC Pension Plan shall be made transferred in accordance with Section 414(l) of the CodeCode (as determined in accordance with the provisions set forth on Seller Schedule 6.6(i)(i)). Sellers Any amount that would have been transferred but for the preceding proviso shall provide Purchasers be paid by Seller to Buyer, and Buyer shall contribute the entire amount to the Buyer Pension Plan as soon as practicable. In consideration of (x) the transfer of the Initial Pension Plan Transfer Amount, and (y) the Seller’s agreement to the transfer of the Pension Transfer Amount, adjusted for interest or earnings using the discount rate set forth on Seller Schedule 6.6(i)(i) as of the Closing Date, the Buyer Pension Plan shall, immediately following the Closing Date, assume all liabilities for benefits payable to the Business Employees pursuant to the terms of the Pension Plan (such liabilities, the “Assumed Pension Plan Liabilities”) and the Pension Plan shall have no further obligations for such amounts. On the first Business Day following the Closing Date, Seller shall transfer or cause the Pension Plan to transfer assets in cash, in an amount equal to 90% of a good faith estimate of the Pension Transfer Amount (the “Initial Pension Plan Transfer Amount”) for Business Employees, to Buyer’s Pension Plan, as determined by Seller as of the Closing Date. The remainder of the Pension Transfer Amount (the “Remaining Pension Plan Transfer Amount”) for Business Employees in cash, shall be transferred as soon as reasonably practical following the Closing Date (but in no event later than one hundred eighty (180) days following the Closing Date). In the event that the Remaining Pension Plan Transfer Amount is a negative amount, then Buyer shall transfer or cause to be transferred from the Buyer Pension Plan back to the Pension Plan such amount in cash. Buyer agrees that the pension plan benefits provided to Business Employees under the Buyer Pension Plan as of the Closing Date shall be no less favorable than the benefits provided to the Business Employees under the Pension Plan immediately prior to the Closing Date. (ii) The actuary retained by Purchasers the Buyer (the “Purchasers’ Buyer’s Actuary” and, together with Seller’s Actuary, the “Actuaries”) Sellers’ shall have the right to review and approve any actuarial or other calculations of performed by the Estimated Spinoff Amount at least fifteen (15) days prior Seller’s Actuary which relates to Closing. Within fifteen (15) days following Closing, Sellers’ Actuary shall update the Estimated Spinoff Amount using the principles and methodologies set forth on Schedule 4.6(c)(2) and using actual applicable inputs at the Closing(the “Final Spinoff Amount”this Section 6.6(i) and shall have the right to examine the materials used (except proprietary systems and software) or produced in connection with any actuarial or other calculation performed by the Seller’s Actuary, excluding any estimates or analyses previously prepared by Seller’s Actuary in connection with the planning or negotiation of this Agreement (but if those are the only analyses that reflect materially changed data or assumptions, Seller shall take reasonable steps to provide Buyer’s Actuary with information sufficient to Purchasers permit Buyer’s Actuary to assess the Sellers’ calculations impact of such amount (“Sellers’ Spinoff Calculation”the changed data or assumptions). Purchasers Buyer’s Actuary shall have fifteen (15notify Seller’s Actuary in writing of Buyer’s Actuary’s disagreement with any calculation made by Seller’s Actuary pursuant to this Section 6.6(i) days following receipt of the Sellers’ Spinoff Calculation (which period will be tolled for Purchasers due to any lack of access to records caused by Sellers, or any of their respective Representatives, and lasting more than two (2) Business Days) to review the Sellers’ Spinoff Calculation. To the extent reasonably required to complete such review of the Sellers’ Spinoff Calculation, Sellers shall provide Purchasers and Purchasers’ Actuary with reasonable access during normal business hours to all the properties, working papers, books, records, contracts, documents, information, and Representatives relevant to the review or preparation of the Sellers’ Spinoff Calculation. Purchasers will deliver notice to Sellers on or prior to the fifteenth (15th) day (as tolled, if applicable) after receipt of the Sellers’ Spinoff Calculation specifying in reasonable detail, supported by a report prepared by the Purchasers’ Actuary, all disputed items with respect to the Sellers’ Spinoff Calculation (including the dollar amount(s), if applicable) and the basis therefor. If Purchasers fail to deliver such notice in such fifteen (15) day period (as tolled, if applicable), Purchasers will be deemed to have waived their right to contest the Sellers’ Spinoff Calculation, and the Final Spinoff Amount as set forth in the Sellers’ Spinoff Calculation will be final and binding for all purposes under this Agreement. If Purchasers notify Sellers of any objections to the Sellers’ Spinoff Calculation during such fifteen (15) day period (as tolled, if applicable), the Parties shall, within thirty (30) days following from the date Buyer’s Actuary receives the calculation from the Seller’s Actuary and (in a format that is readily electronically readable) all related data necessary for Buyer’s actuary to analyze the calculation. If no such notice is provided by Buyer’s Actuary within the 30-day period, Seller’s Actuary’s calculations shall be conclusive and binding upon the parties. Buyer’s Actuary shall not be entitled to object to the determinations of such notice, attempt to resolve their differences and Seller’s Actuary based on any written resolution by them disagreement as to the interest rates, assumptions or methods used by Seller’s Actuary. Buyer’s Actuary shall be entitled to assume that actuarial calculations are based on correct and complete data and, therefore, if there is any disputed amount will subsequent change in the data that would reasonably be final expected to have a financial impact exceeding $1 million, Seller and binding Buyer intend for all purposes under this Agreementthere to be a net adjustment. If there is any good faith dispute between Sellers’ Seller’s Actuary and Purchasers’ Buyer’s Actuary with respect to any actuarial or other calculation which continues after Seller’s Actuary has considered the view of Buyer’s Actuary, which gives rise to a disputed amount regarding the Final Spinoff Amount that is not in excess of one percent $1 million (1.0%) of the Final Spinoff Amountbefore interest and adjustment as calculated by Seller’s Actuary), such dispute shall be resolved by dividing the disputed amount in half and adding such amount to the lesser of the two amounts that which originally gave rise to such dispute. If such disputed amount exceeds one percent $1 million (1.0%before interest and adjustment as calculated by Seller’s Actuary) of the Final Spinoff Amount and the Sellers’ Actuary and Purchasers’ Actuary Actuaries are not able to resolve such dispute after using their reasonable best efforts to do so within thirty (30) days from the date Purchasers’ Buyer’s Actuary provides notice of its objection to receives the Sellers’ Spinoff Calculationcalculation and all related data from the Seller’s Actuary, Sellers the Seller and Purchasers the Buyer shall mutually agree on a third-party third nationally recognized actuarial firm (the “Independent Actuary”), which has no professional relationship with any either of the parties hereto or the Sellers’ Actuary or Purchasers’ either Actuary, to resolve such dispute. Within thirty (30) days after being engaged to review the disputed matter in accordance with the terms and conditions of this Agreement, the Independent Actuary shall determine only those matters in dispute and shall deliver a written report to Sellers Seller and Purchasers Buyer as to the disputed matters. Upon resolution of the disputed matter, Sellers’ Seller’s Actuary shall recompute the Final Spinoff Pension Transfer Amount taking into account the conclusions of the Independent Actuary as to such disputed matters. The accuracy of such computation recomputation shall be subject to confirmation by the Purchasers’ Buyer’s Actuary. Notwithstanding the foregoing, in rendering its report to the Sellers Seller and PurchasersBuyer, the Independent Actuary shall not perform independent calculations but shall be permitted to review the information relied upon by Sellers’ Seller’s Actuary and Purchasers’ Buyer’s Actuary in their presentations and any follow-up requested information with respect to the disputed matter. The decision of the Independent Actuary shall be conclusive and binding upon the parties as to any dispute for which it was appointed. The cost of the Independent Actuary shall be divided equally between Sellers Seller and PurchasersBuyer. Each party shall be responsible for the cost of its own actuary. If the Final Spinoff Amount (as finally determined pursuant to this Section 4.6(c)(2)) is greater than the Estimated Spinoff Amount, Sellers shall cause the BWC Pension Plan to transfer to the DPI Pension Plan an amount equal to the difference between the Final Spinoff Amount and the Estimated Spinoff Amount within thirty (30) Business Days following the determination of the Final Spinoff Amount. If the Final Spinoff Amount (as finally determined pursuant to this Section 4.6(c)(2)) is less than the Estimated Spinoff Amount, Purchasers shall cause the DPI Pension Plan to transfer to the BWC Pension Plan an amount equal to the difference between the Final Spinoff Amount and the Estimated Spinoff Amount within thirty (30) Business Days following the determination of the Final Spinoff Amount. If, after determination of the Final Spinoff Amount, errors or changes in the data are discovered, which would have resulted in a Final Spinoff Amount that is at least 10% higher or lower than the agreed upon Final Spinoff Amount, the parties will work in good faith to transfer an amount of assets from the BWC Pension Plan to the DPI Pension Plan or from the DPI Pension Plan to the BWC Pension Plan, as appropriate to reflect the corrected Final Spinoff AmountActuary. (3iii) During As soon as practicable after the Interim Period, Sellers shall inform the Pension Benefit Guaranty Corporation (the “PBGC”) of the proposed transaction, the proposed Spinoff, and the related transfer of assets to the DPI PlanClosing Date, to the extent not already communicated filed prior thereto, Seller and Buyer shall file Form 5310-A with the IRS, if applicable, with respect to the PBGCtransfer of assets described in this Section 6.6(i)(iii) and shall make all plan amendments necessary to effectuate such provision.