3. Evaluating Options and Obligations in Complex Corporate Transactions or Restructurings
When determining what type of transaction to enter into, a buyer and seller must evaluate the potential pension issues that may arise under each structure and their corresponding options and obligations. This section outlines the issues that a buyer and seller can expect to encounter when entering into each type of transaction.
Pension Issues Specific to Share-Purchase Transactions
In a share-purchase transaction, the buyer essentially "steps into the shoes" of the seller. The corporation continues as the same legal entity but under the control of the new shareholder(s). Unless stipulated otherwise, all pension plan assets and liabilities remain with the corporation following its sale.
From the plan members' perspective, a share-purchase transaction is beneficial because the employer-employee relationship continues unaltered amid the corporate change. The obligation of the purchased company to continue to provide pension and benefit plans will not be affected by the change of ownership.
From the perspective of a buyer or seller, a share-purchase transaction is advantageous from a pensions/benefits point of view because it is much less complex and does not require regulatory approval. However, because all assets and liabilities relating to the pension and benefit plans remain owned by the corporation, they directly affect the value of the shares. Therefore, it is crucial that both parties complete the meticulous due diligence process discussed above. More specifically, the buyer must fully comprehend the nature and magnitude of the obligations it is undertaking and determine whether the plan has been administered in accordance with its terms. Similarly, the seller must understand the implications of the funded status of the plan to ensure that the purchase price reflects any overfunding or underfunding in the plan.
Pension Issues Specific to Mergers
In a pension plan merger, two or more pension plans are amalgamated into a single plan through a transfer of pension plan assets from one plan to another with the consent of the Superintendent. This scenario may be in the best interests of the amalgamated corporation as well as the plan members for several reasons.
From the plan members' perspective, in the case of a DB plan, a merger is generally preferable because most of these in Canada use years of service as part of the formula to calculate employee entitlement. If the plans are not merged, the combined pension that a plan member collects will likely be reduced.19
From the amalgamated corporation's perspective, merging pension plans can ensure uniform benefits among all employees, reduce plan administration costs and streamline regulatory compliance obligations. In addition, plan mergers are very attractive to amalgamated corporations when one of the pre-merger plans is underfunded and the other has excess funding. In certain situations, plan sponsors may be able to use the surplus in one plan to offset their contributions to the other. However, recent jurisprudence (discussed above) has cast doubt over whether plan mergers of this sort continue to be legally permissible.
Despite these advantages, merging pension plans is not a simple process. Before the plans can merge, the amalgamated corporation must undertake a complex review of plan documents, legislation, regulatory policies and case law. Additionally, the applicable funding agreements must be analyzed to ensure that a merger is permitted and, if so, to determine the parameters under which a merger can occur. Moreover, if the plan is subject to a trust, a more extensive review must be conducted since case law is unsettled in this area.20
Pension Issues Specific to Asset-Purchase Transactions
In an asset-purchase transaction, the seller's pension plan is not necessarily transferred to the buyer. The negotiations may address whether the buyer will even offer a pension plan to the transferred employees. If the buyer decides to offer a pension plan, it has several options including assuming the seller's pension plan, and having the transferred employees participate in a new or previously existing pension plan offered by the buyer. Because the parties to this type of transaction have many alternatives, the resulting arrangements are often complex.
In determining whether to transfer the seller's pension plan to the buyer or choose another course of action, the following factors should be taken into consideration:
- whether the buyer already has a pension plan in place that
could cover the transferred employees or accept a transfer of
assets from the seller's pension plan in respect of the
transferred employees;
- whether the transferred employees represent only a portion or
all of the members in the seller's pension plan;
- whether there is a collective agreement in place with respect
to the transferred employees that references certain pension
benefits or a specific pension plan; and
- the funded status of the seller's pension plan (whether
there is a surplus or deficit).
Five general options for dealing with pension plans in an asset-purchase transaction are discussed below.
(i) Buyer does not offer pension plan
The buyer may not want to offer a pension plan to the transferred employees. Although this may seem like an attractive option for the buyer, since it reduces costs and limits exposure to risk because there are no concerns regarding funding liabilities or representations and warranties, it has several negative implications.
First, this option is generally unattractive from the seller's perspective since a full or partial windup of the seller's pension plan may be ordered.21 This is generally not in the seller's best interest because the seller must deal with any surplus22 or deficit23 issues as of the windup date. In addition, a plan windup will trigger certain rights of the affected employees, which may be costly to the seller.24
Second, for the buyer, the initial impression of advantage may be outweighed by the prospect of dissatisfaction among the transferred employees. In addition, wrongful/constructive dismissal issues can arise if the buyer does not offer employment on terms (including pensions and benefits) similar to those provided by the seller. Since the contract of employment is with the seller prior to the transaction, generally the seller is responsible for termination or severance costs in respect of any employees who do not accept the buyer's offer of employment (unless agreed otherwise). Accordingly, the seller will generally require the buyer to offer employment to any non-unionized transferred employees on terms that are substantially similar in the aggregate to those provided by the seller.25 When the buyer will not agree to this term, the parties may negotiate that any termination or severance costs shall be the buyer's responsibility.
Third, from the employees' perspective, this is clearly not an attractive option.
(ii) Seller retains past-service liability and buyer offers plan for future services only
Another option is for the seller to retain responsibility for past service related to the transferred employees and for the buyer to either establish a new pension plan for the transferred employees or permit these employees to participate in an existing pension plan. In this situation, the seller remains responsible for all accrued liabilities of the transferred employees in the seller's pension plan until the closing date of the transaction. At that point, the transferred employees become members of either an existing plan or a new plan sponsored by the buyer, which is responsible for their benefits as of the closing date.26
From the buyer's point of view, this option may be preferable, especially if the seller's pension plan is underfunded, because the buyer assumes no accrued pension liability for the transferred employees. Furthermore, because this option does not require a transfer of assets, it is unnecessary to obtain regulatory approval. However, if there is a collective agreement in place that references a specific pension plan, this option may not be available.
From the seller's perspective, this option may address the potential windup concern. As the buyer provides a pension plan for the transferred employees,27 their employment will be deemed not to be terminated.28 However, the seller should consider requesting a covenant that the successor plan be retained by the buyer for a fixed period. This covenant may help protect the seller from being considered an employer after the transaction closes; as an employer, the seller could be responsible for liabilities arising from the windup of the buyer's pension plans. This was the case in GenCorp Canada Inc. v. Superintendent of Pensions for Ontario,29 in which the Ontario Court of Appeal found that GenCorp Canada Inc. was caught by the definition of "employer" in the PBA30 and was subject to the windup order even though the employees affected had been transferred to General Tire of Canada Inc. four years before the windup. However, it is not clear how long a covenant a seller should request to avoid this situation.
The buyer should also be careful when communicating plan amendments. The Kerry decision appears to have placed a heightened responsibility on employers to communicate plan amendments clearly and accurately to employees. In Kerry, the employer was held to have given inadequate notice to employees about a one-time opportunity to convert from a DB to a DC arrangement.31
From the employees' perspective, this option may be unattractive because they will receive their pensions from two sources upon retirement. In addition, if the pension promised is a DB based on final or career average earnings, the employees' total pension will likely be reduced because the calculation in the seller's plan will be based on lower earnings (assuming that employees' salaries continue to increase during their employment). This issue can be resolved by a wraparound arrangement, discussed below.
(iii) Wraparound arrangement
A wraparound arrangement is similar to option (ii). The buyer's plan provides employees with a single benefit based on each employee's final (or career) average earnings with the buyer and combined service with the buyer and the seller, and the pension benefits that are payable under the seller's plan are offset. This arrangement corrects the problem identified in option (ii) with DB plans that are based on final or career average earnings and service.
If the wraparound option is used, the seller should consider requesting a covenant under which the buyer guarantees the continued existence of the successor pension plan for a fixed period.
(iv) Carve-out arrangement
Another option is for the assets and liabilities related to the transferred employees to be carved out of the seller's pension plan and transferred to an existing plan or a new plan offered by the buyer. The buyer assumes all pension liabilities related to the transferred employees for all their years of service. However, negotiating a carve-out arrangement can be quite an extensive process and obtaining regulatory consent can take years.32 Because of the complexities of these arrangements, the parties will often negotiate a separate agreement dealing only with the terms of the pension carve-out, which is incorporated by reference into the asset-purchase agreement. The parties have many questions to consider, including the following:
- What is the value of the assets and liabilities to be
transferred or assumed?
- What actuarial assumptions will be used to determine the amount
to be transferred from the seller's plan to the buyer's
plan?
- Who will be responsible for preparing and filing the necessary
regulatory filings?
- What happens if regulatory approval for the transfer is not
granted?
- Who has responsibility for the administration of the pension
plan until the transfer occurs?
- How will the assets related to the transferred employees be
invested in the interim period, and who will bear the risk of any
investment gains or losses?
If the seller's plan is in surplus, depending on the plan and trust terms, it may be necessary to transfer a pro-rata portion of the surplus. In the case of Burke v. Hudson's Bay Company,33 there was no requirement to transfer a portion of the surplus. However, this case makes it clear that whether or not surplus must be transferred will depend on the plan and trust terms. In Burke, Hudson's Bay Company (HBC) sold a division and transferred employees to the buyer. Assets and liabilities related to the transferred employees were carved out and transferred to the buyer's pension plan. HBC's pension plan was in surplus at the time of the sale but no portion of surplus was transferred to the buyer's plan. HBC's plan was subject to a trust. The Court of Appeal cited Schmidt for the proposition that members' entitlement to surplus is governed by the plan documentation, which in this case was the plan text and the trust agreement. The trust agreement provided that the pension fund could be used only for the members' exclusive benefit; however, the Court noted that the plan text was the dominant document. The plan text limited members' entitlement on plan termination to the value of their defined benefits and gave HBC the right to surplus. The Court held that since the members were not entitled to the surplus on plan termination, HBC was not required to transfer a portion of the surplus in the carve-out.
From the employees' perspective, the carve-out is advantageous since their pensions upon retirement will be paid from one source.
However, the carve-out is generally not an attractive option for the buyer because costs can be high and transferring assets between pension plans requires regulatory approval.34 In fact, FSCO's policy regarding plan transfers is a significant hurdle to the carve-out. Following the Aegon decision, FSCO released a policy statement about approval of asset transfers where one or more of the plans is subject to a trust. The policy was essentially a moratorium on plan transfers unless the proposed transfer fit within one of the exceptions enumerated in the policy or was otherwise satisfactorily distinguishable from Aegon.
FSCO's most recent comment dealing with this issue, titled "Trust Issues on Plan Transfer/Merger (Transamerica),"35 provides that the Superintendent will consider applications for asset transfers in the circumstances set out in a checklist released by FSCO. The checklist is designed to identify issues related to trusts that may need to be considered in asset transfers. Although the checklist is not mandatory, an applicant who elects to use it must certify that the information provided is accurate to the best of its knowledge and belief. The checklist appears to take a pragmatic approach to these issues and to have assisted in expediting the approval process in appropriate cases.
(v) Transfer of pension plan
The final option is for the buyer to assume all the assets and liabilities of the seller's pension plan. In this case, the buyer will generally take the pension plan "as is," meaning that the buyer will assume sponsorship of the plan with a deficit or a surplus. Furthermore, the buyer will assume any liabilities associated with prior plan administration. For example, if the seller had been paying plan expenses from the pension fund and this was contrary to the terms of the plan or the trust, the buyer, as the new sponsor of the plan, would likely be liable for the breach. In certain cases, a collective agreement may require that the specific plan be provided to the transferred employees, which may necessitate a plan transfer.
The main advantage of transferring the entire plan is that it is reasonably straightforward. The transfer of the pension plan's sponsorship is done by an amendment to the plan that merely changes the plan sponsor. Like all plan amendments, the amendment must be filed and approved by both CRA and FSCO; however, approval is generally not difficult to obtain. When this option is selected, the buyer or seller may wish to negotiate a purchase price adjustment, depending on the funded status of the plan, to take into consideration the overall effects of transferring it. The parties will need to resolve various issues in the agreement, including the question of responsibility for preparing and filing the necessary filings, and the transfer of employee data.
From the employees' perspective, this is generally an attractive option because they will receive pension benefits upon retirement from only one pension plan.
4. Strategies for the Successful Conversion of Pension Plans
Over the past decade, the number of pension plans "converted" from DB to DC has increased.36 Employers tend to prefer DC plans because there is virtually no risk of their being underfunded, and it is relatively easy for employers to cap their pension costs.
The PBA does not expressly refer to pension plan conversions. Instead, FSCO policies37 and case law provide guidance on how the process is governed. Typically, there are three methods by which an employer that sponsors a DB plan can convert to a DC plan. First, an employer can convert a plan by winding up the DB plan, discharging all accrued pension benefits and registering a new DC plan.38 Second, an employer can apply to transfer the assets and corresponding pension liabilities in the DB plan to a new or an existing DC plan.39 Finally, an employer can amend the DB plan to freeze benefit accruals in the plan as of a certain date and require new employees and employees formerly accruing service in that plan to participate in a new or an existing DC plan from then on.40
Because a pension plan conversion involves a significant change to the pension benefit formula, it usually requires one or more pension plan amendments. Moreover, because DC conversions create uncertainty and risk for the plan members, this type of amendment is considered "adverse" under pension legislation. Consequently, employers must give plan members advance notice of the conversion.41 More specifically, the Ontario Court of Appeal appears to have set a high standard for communications with plan members in this type of transaction, placing an onus on plan sponsors to communicate clearly and accurately with plan beneficiaries or risk having those amendments declared invalid.42
Another issue that has recently been raised with respect to plan conversions is the permissibility of cross-subsidization – that is, using DB surplus to offset DC contribution obligations after a conversion in which the pension plan is funded pursuant to a trust. In Kerry, the Ontario Court of Appeal provided much-needed clarity on the law in this area. In Kerry, the original trust agreement prohibited the use of trust funds for purposes other than for the "exclusive benefit" of the pension fund's beneficiaries. Accordingly, when the plan was amended to introduce a DC component and the employer used the DB surplus to offset its DC obligations, the plan members argued that the trust was breached. However, the Court of Appeal held that as soon as the plan was amended to include the DC members as fund beneficiaries, cross-subsidization was permitted, and thus the trust was not breached. The Court went on to suggest that, unlike typical trusts, pension plans are open to having new beneficiaries added over time as new employees become eligible to join the plan. Consequently, in this case, using surplus to pay contributions for a new class of DC members was not a breach of the "exclusive benefit" restrictions in the trust, since both DB and DC members were part of the same pension plan and beneficiaries of the same fund.43
The Kerry decision affirms that cross-subsidization is permissible in certain cases. However, the decision emphasizes that this permissibility often hinges on the wording of plan documentation. Therefore, before executing a conversion, plan sponsors must carefully review the wording of all plan and trust documents to ensure that the plan is properly structured. Additionally, plan sponsors should ensure that communications to beneficiaries about the conversion are consistent with pension legislation and the plan documents, and that these communications properly describe the legal effects of any changes or rights concerning the pension plan.
5. Issues Related to Multi-Employer Pension Plans in Corporate Transactions
As described earlier, an MEPP is a pension plan with two or more unrelated participating employers. Most MEPPs are structured for employers in a common industry or drawing from the same workforce. Generally, the required employer contributions are fixed by a collective agreement, even if the benefit provided to the employees is based on a DB model.44
From an employer's perspective, MEPPs are advantageous because funding obligations are generally limited to a fixed schedule (except in Quebec) and administration costs are shared across the entire group. From a plan member's perspective, an MEPP provides a predictable, targeted benefit at retirement without the individual return and longevity risks of DC plans. This pooling means that members can generally expect to receive greater benefits than they would if they were participating in a DC plan of equivalent cost.
As with single-employer pension plans, a series of issues, obligations and considerations arise with respect to MEPPs in corporate transactions.
MEPP Issues Specific to Share-Purchase Transactions
The considerations that a buyer and seller should take into account when dealing with an MEPP are very similar to those relating to a single-employer pension plan.
The seller will likely be asked to provide representations and warranties with respect to any MEPPs and will also be required to undertake some level of due diligence, including identifying all relevant MEPPs and the jurisdiction of employment of seller employees who participate in the MEPP.45 The seller will need to review the plan text, the trust agreement and the applicable collective agreement or participation agreement to identify how any MEPPs should be dealt with in the share-purchase agreement.
The buyer will be interested in uncovering all the potential unfunded liabilities or other sources of liability in order to proceed with and price the transaction. The buyer will often seek the following representations and warranties:
- that the obligations of the seller in respect of any MEPPs are
restricted to the contribution, reporting and audit obligations set
out in the applicable collective agreement or participation
agreement;
- that all plans are listed in a schedule and the seller has
delivered to the buyer true, complete and up-to-date copies of the
plan texts and all amendments together with, as applicable, all
funding agreements, all summary descriptions of the benefit plans
provided to past or present participants, the most recent actuarial
report, the financial statement, if any, and evidence of any plan
registration;
- that all employer or employee payments, contributions and
premiums required to be remitted, paid to each plan or paid in
respect of each plan have been paid or remitted in a timely fashion
in accordance with the plan's terms and all applicable
legislation, and no taxes, penalties or fees are owing or exigible
under any plan; and
- that there are no pending or, to the knowledge of the seller,
threatened material actions, suits, claims, trials, demands,
investigations, arbitrations or other proceedings with respect to
the plans against the corporation, the funding agent, the insurers
or the fund of the plans.
Given the time constraints often imposed in a corporate transaction, sellers are sometimes unable to obtain and provide the key MEPP documentation. If this is the case, the buyer may seek a representation that all material documents pertaining to the MEPPs have been provided. This enables the buyer to pursue a breach of warranty if the seller omits a document that would have disclosed a problem. Alternatively, the buyer should seek some form of indemnity.
MEPP Issues Specific to Asset-Purchase Transactions
If a seller's participation in an MEPP is the subject of collective bargaining (which is almost always the case), it will typically be impossible for the buyer, as a successor employer, to unilaterally withdraw from the MEPP. If a buyer is a successor employer for the purposes of an MEPP, the discussion in the share-purchase section of this paper will apply.
6. Conclusion
Pension issues are usually not the first concern of the parties involved in a purchase and sale transaction. However, because of the potential effect of pension liabilities on the bottom line, companies are increasingly concerned about pension plans in corporate transactions. As examined in this paper, pension issues can affect the amount of due diligence required, the purchase price, the representations and warranties, and the obligations of the buyer to transferred employees. The keys to dealing with pension-related concerns in a complex corporate transaction are to obtain as much information as possible about the pension plans involved and to seek expert pension advice as early as possible in the process.
Footnotes
19.Mitch Frazer, "Pensions in the Context of Cross-Border Merger and Acquisitions: A Canadian Perspective." Eleventh International Pension and Employee Benefits Lawyers Association Conference. (Seville, Spain: May 20-23, 2007) at 2.
20.Some mergers have been recognized while others have been denied. Mergers that have been recognized include Schmidt; Buschau; Re National Trust Co. and Sulpetro Ltd. (1990), 66 D.L.R. (4th) 271 (Alta. C.A)
21.PBA, supra note 2, s. 69(1)(f) provides that the Superintendent, by order, may require the windup of a pension plan in whole or in part if "all or part of the employer's business or all or part of the assets of the employer's business are sold, assigned or otherwise disposed of and the person who acquires the business or assets does not provide a pension plan for the members of the employer's pension plan who become employees of the person."
22.Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] S.C.J. No. 51, (2004), 242 D.L.R. (4th) 193.
23.PBA, supra note 2, s. 75.
24.See, for example, ibid., s. 73 (immediate vesting) and s. 74 (grow-in rights).
25.Unionized employees are transferred by operation of law as where an employer sells its business, the purchaser is bound by the collective agreement as if the purchaser had been a party to the collective agreement pursuant to section 69 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.
26.PBA, supra note 2, s. 80 governs this type of arrangement and states that a transferred employee who becomes a member of a pension plan provided by the buyer is entitled to: (i) the benefits provided under the seller's plan to the effective date of the sale; (ii) credit in the pension plan of the buyer for the period of membership in the seller's plan for the purposes of determining eligibility for membership in and entitlement to benefits under the buyer's plan; and (iii) credit in the seller's pension plan for the period of employment with the buyer for the purposes of determining entitlement to benefits under the seller's plan.
27.Supra note 21. However, in the case of AIG v. Sutton, FST File No. PO245-2004 (September 6, 2005), the FST concluded that section 81 of the PBA does not affect the Superintendent's jurisdiction to order a windup where it is appropriate to do so. Furthermore, the FST noted that the Superintendent has jurisdiction under paragraph 69(1)(a) of the PBA to order a windup where there has been a "suspension or cessation of employer contributions" and it may be appropriate for the Superintendent to exercise this jurisdiction if the members are in jeopardy of losing their positions or future pension.
28.PBA, supra note 2, s. 80(3).
29.(1994), C.E.B. 8199 (Ont. Pension Comm.), aff'd (1995), 26 O.R. (3d) 696, 10 C.C.P.B 289, (1998), 39 O.R. (3d) 38 (C.A.), leave to appeal to S.C.C. dismissed, [1998] S.C.C.A. No. 206 (QL).
30.PBA, supra note 2, s. 1(1) defines employer as follows: "in relation to a member or a former member of a pension plan, means the person or persons from whom or the organization from which the member or former member receives or received remuneration to which the pension plan is related, and "employed" and "employment" have a corresponding meaning."
31.Supra note 18.
32.FSCO now has a policy under which parties that wish to withdraw a pending application can apply to FSCO: Policy A700-301, "Withdrawal of Application for Consent to a Transfer of Assets."
33.(2008), 67 C.C.P.B. 1, 40 E.T.R. (3d) 157, [2008] O.J. No. 1945 (C.A.) (QL) [Burke].
34.PBA supra note 2, s. 80(4).
35.Online: Financial Services Commission of Ontario http://www.fsco.gov.on.ca/english/pensions/transamerica/trustissues.asp.
36.Ari N. Kaplan, Pension Law (Toronto: Irwin Law, 2006) at 457 [Kaplan].
37.For a DB to DC conversion, see FSCO Policy C200-101, "Conversion of a Plan from Defined Benefit to Defined Contribution." For a DC to DB conversion, see FSCO Policy C200-150, "Defined Contribution to Defined Benefit."
38.Although this option may be the cleanest from a legal and regulatory perspective, it would increase the aggregate value of the pension benefit liabilities in the DB plan given the statutory enhancements conferred to employees upon plan windup, such as automatic vesting and grow-ins. Because a full plan windup also involves the liquidation of the pension plan, any surplus existing in the plan is crystallized as of the windup date and must be distributed to the proper recipients. Ibid. at 458.
39.If employees elect to transfer their commuted values, the employer must get the consent of the Superintendent to transfer the assets from the DB plan and merge them into the DC plan. This method is desirable when an employer, in conjunction with the pension asset transfer application, can transfer any surplus assets from the DB plan and use them to take contribution holidays in respect of the employer's normal contribution costs under the DC plan. Ibid.
40.Ibid.
41.PBA, supra note 2, s. 26(1).
42.In its reasoning in Kerry, supra note 18, the Court was highly critical of the communications provided to plan members about the plan conversion because they did not properly describe the legal effects of the conversion.
43.Ibid.
44.Kaplan, supra note 37 at 97.
45.If there are Quebec members in the MEPP, regard must be had to the potential impact of Quebec's Bill 68.
Mitch Frazer is a partner in Torys' Pension and Employment Group. His practice deals with all aspects of pensions and benefits matters, including ongoing pension plan administration, compliance and investment issues, surplus withdrawal, contribution holidays, the payment of administrative expenses, pension plan windups and pension solvency funding issues, as well as non-pension and post-retirement benefits issues.
Jana Steele is a partner and the head of Goodmans' Pensions, Benefits and Compensation Group. She has extensive experience dealing with pensions and benefits in the context of corporate transactions. Jana has written and spoken extensively on issues facing pension plans and their sponsors and is currently co-chair of the Advocacy and Government Relations Committee of the OBA pensions and benefits executive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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