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The AMA Handbook of Due Diligence by Andrew J. Sherman, William M. Crilly

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SECTION 36
DUE DILIGENCE CHECKLISTS FOR SPECIAL SITUATIONS
36-01: Employee Benefit Plans
And ERISA Matters
A. General Checklist
The following document checklist is designed to assist the reviewing attorney and others involved in the employ-
ee benefit due diligence effort to ensure that all relevant plans, programs, agreements and other material docu-
ments have been identified and reviewed in the context of a corporate finance or merger/acquisition transaction.
All current and terminated ERISA plans and amendments or modifications thereto
All current and terminated non-ERISA plans and amendments and modifications thereto
All current and terminated multi-employer plans and related data
All deferred compensation arrangements, procedures or policies
All employment contracts (or written summaries of any oral employment contracts), golden para-
chutes, silver parachutes, tin parachutes, etc.
All securities options, awards, warrants, etc. agreements or programs
List of current employees and plans in which they participate
List of all former employees and retirees and plans in which they participate
Summary description of all perquisites and other non-plan benefits applicable to groups or cate-
gories of employees
All medical benefit or other similar programs or plans, including but not limited to physician care,
dental, ophthalmological, and pharmaceutical
Summary description of sick pay, family leave, vacation, holiday, tuition reimbursement, continu-
ing education, matching charitable contributions, and related policies or programs
Audited, reviewed or compiled financial statements and the notes thereto
All actuarial reports and analyses, including a certificate from the responsible officer that all such
reports and analyses have been produced for review
All information relating to funding vehicles such as Voluntary Employee Benefit Associations
(VEBAs), trusts, letter of credit arrangements, etc.
Confirmations of lien status for purposes of IRC § 412 and ERISA § 4068
All loan documents evidencing transactions involving plans, trusts, funding vehicles, etc.
All special plans or programs such as those relating to Employee Stock Plans (ESOPs)
Detailed listing of all assets held in, by or for the benefit of any plan, program, trust, etc.
All investment advisor, fiduciary, consultant, actuary and other third party engagement agreements
and correspondence
All written, electronic or other communication with employees, former or retired employees and
other plan or program participants including but not limited to policy statements, memoranda,
Consolidated Omnibus Budget Reconciliation Act (COBRA) disclosures/records, Internal
Revenue Code § 402 notices and individual account statements
DUE DILIGENCE HANDBOOK 36-01
771
36-02 DUE DILIGENCE HANDBOOK
All governmental or regulatory filings, notifications and communications including but not limit-
ed to Forms 5550, Forms 5310, Securities and Exchange Commission forms, Pension Benefit
Guaranty Corporation filings, etc.
All applications and correspondence relating to (and copies of) each “determination” letter for each
qualified plan
All petitions, filings, notices, correspondence and other documentation relating to any litigation
arbitration or mediation involving any current or terminated plans, programs or policies
All correspondence among the plan sponsor and any third parties (including but not limited to gov-
ernmental authorities, trustees, actuaries, attorneys, accountants, etc.) relating to or involving
employee plans or benefits generally
All corporate or other legal entities records relating to the adoption, modification, qualification or
other aspects of employee plans, programs or policies.
Any “qualified employer securities” acquisition-related memoranda or files
All material internal memoranda related to any of the above
B. Pension Plans
NAME OF PLAN: ___________________________________
TYPE OF PLAN (Defined Benefit, Defined Contribution, ESOP, Non-Qualified, 401(k), Cafeteria (125),
Multi-employer, Health Savings Account, and Other Benefits, etc.):
DATE PLAN ESTABLISHED:
DESCRIBE TYPE OF QUALIFICATION (INITIAL AND SUBSEQUENT DETERMINATION
LETTERS):
APPROXIMATE NUMBER OF PARTICIPANTS:
NAME AND CONTACT INFORMATION FOR TRUSTEE, INSURER, etc., as appropriate:
NAME AND CONTACT INFORMATION FOR ACTUARY, if any:
DATE OF MOST RECENT ACTUARIAL REPORT and contact information for preparer of report, if any:
ACCRUED VESTED AND NON-VESTED BENEFITS (for defined benefit plan, based on most recent
actuarial report):
TOTAL PLAN ASSETS:
Are employer securities or employer real property held by plan? If so, describe type, amount and value:
Is there a fiduciary bond for plan? Yes ____ No ____. If yes, describe:
ATTACH COPIES OF FOLLOWING, TO EXTENT APPROPRIATE:
(i) Plan (and amendments)
(ii) Trust
(iii) Form 5500 for the past three years and Schedules thereto
(iv) Qualification Letters
(v) Actuarial Report
(vi) Form 5300 and Schedules thereto
(vii) Collective Bargaining Agreement
772
36-01: Employee Benefit Plans
And ERISA Matters (Continued)

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