Common use of Buyer Pension Plan Clause in Contracts

Buyer Pension Plan. (i) No later than the Closing Date, Buyer shall establish or maintain, or shall cause one of its Affiliates to establish or maintain, a defined benefit pension plan (the "Buyer Pension Plan") that, subject to this Section 6.5(c), (A) for a period of not less than twelve (12) months following the Closing Date, provides benefits to each non-union Transferred Employee that are no less favorable in the aggregate than those provided by the Qwest Pension Plan based on terms of the Qwest Pension Plan applicable to such Transferred Employee as of the Closing Date, and (B) for a period provided by the applicable CBA, provides benefits for each union-represented Transferred Employee that are substantially identical to those provided by the Qwest Pension Plan based on terms of the Qwest Pension Plan applicable to such Transferred Employee as of the Closing Date. The Buyer Pension Plan shall be established and/or maintained for the benefit of each Transferred Employee (collectively, the "Dex Pension Participants") who participated or had accrued benefits in the Qwest Pension Plan immediately prior to the Closing Date, and shall be (or remain) qualified under Section 401(a) of the Code, and the trust which is a part of the Buyer Pension Plan shall be exempt from tax under Section 501(a) of the Code. Each Dex Pension Participant who is a participant in the Qwest Pension Plan as of the Closing Date shall become a participant in the Buyer Pension Plan as of the Closing Date. The Buyer Pension Plan and the trust which is a part of such plan (and any successor to such plan and/or trust) shall provide (I) that with respect to assets transferred to the Buyer Pension Plan from the Qwest Pension Plan, such assets shall be held by the trust which is a part of the Buyer Pension Plan for the exclusive benefit of the participants in such plan, (II) that the accrued benefits as of the Closing Date of each Dex Pension Participant may not be decreased by amendment or otherwise, (III) that each Dex Pension Participant shall have the right to receive his or her benefit accrued through the Closing Date under the Qwest Pension Plan in any optional form available to such Dex Pension Participant with respect to such benefit provided under the Qwest Pension Plan, (IV) that during the periods set forth in the first sentence of this paragraph, each Transferred Employee shall accrue benefits thereunder pursuant to benefit formulas that satisfy such sentence, and (V) that each Dex Pension Participant shall be credited for service with Qwest and its Affiliates (or U S WEST, if applicable) for eligibility, vesting, early retirement, and, contingent upon the transfer of assets set forth below, benefit accrual and compensation earned with Qwest and its Affiliates (or U S WEST, if applicable) to the extent such service was credited under the Qwest Pension Plan. In addition to the foregoing, subject to the transfer of pension assets described in this Section 6.5(c), upon termination of employment with Buyer and its Affiliates, each Transferred Employee's accrued benefit under the Buyer Pension Plan shall be not less than the sum of (x) the benefit accrued based on service with Qwest and its Affiliates (or U S WEST, if applicable) through the Closing Date, determined on the basis of the benefit formula, rights and features of the Qwest Pension Plan as in effect on the Closing Date, but using such Transferred Employee's final years of compensation with Buyer or its Affiliates for this purpose (except to the extent that the Qwest Pension Plan provides, at the time of the Closing Date, that compensation has already been frozen for the Transferred Employee under the applicable formula), plus (y) the benefit accrued based on service following the Closing Date, determined on the basis of the benefit formula, rights and features of the Buyer Pension Plan as in effect from time to time; provided, however, that clauses (x) and (y) shall not restrict Buyer's right to amend or terminate the Buyer Pension Plan subsequent to expiration of the applicable periods set forth in the first sentence of this paragraph so long as accrued benefits as of the effective date of the amendment are not reduced. (ii) As soon as practicable following the Closing Date, Seller shall cause its actuary to calculate the Accrued Liability (as defined in Section 6.5(c)(iv)) of the Dex Pension Participants as of the Closing Date. Seller shall cause to be transferred to a trust established by Buyer as part of the Buyer Pension Plan a combination of cash and readily tradable assets (as mutually agreed by Seller and Buyer) equal to the Accrued Liability for all Dex Pension Participants, determined as of the Closing Date pursuant to Section 6.5(c)(iv). For this purpose, the value of the assets shall be determined based on the audited reports of the trustee of the Qwest Pension Plan. The amount finally determined in accordance with the foregoing to be transferred from the Qwest Pension Plan to the Buyer Pension Plan shall be adjusted to take into account the actual investment return of the Qwest Pension Plan from the Closing Date until the date of the asset transfer (provided, that the investment return for the month in which the transfer occurs shall be deemed to be the average monthly rate on the Mellon Trust Short Term Interest Fund (STIF) in which the Qwest Pension Plan holds certain temporary cash funds from time to time), and shall be decreased by any benefit payment made to or with respect to the Dex Pension Participants under the Qwest Pension Plan during such period; it being understood that any benefits payable to a Dex Pension Participant who retires or terminates employment with Buyer and its Affiliates after the Closing Date and prior to the date of the asset transfer described herein and who is eligible to receive a distribution at such time shall be paid from the Qwest Pension Plan until the date of the transfer. (iii) The transfer of assets from the Qwest Pension Plan to the Buyer Pension Plan shall be made as soon as practicable, but not later than 270 days after the Closing Date, following the determination pursuant to Section 6.5(c)(iv) of the applicable amount to be transferred in accordance with Section 6.5(c)(iv). Notwithstanding the foregoing, no transfer shall be made until such time as Seller has been provided evidence reasonably satisfactory to Seller that (A) Buyer has established a trust as part of the Buyer Pension Plan, (B) that the Buyer Pension Plan satisfies the requirements for a qualified plan under Section 401(a) of the Code and that such trust is exempt from tax under Section 501(a) of the Code, and (C) Buyer has provided documentation regarding the tax-qualification of the Buyer Pension Plan; such documentation consisting of either (I) a favorable determination from the IRS, (II) a filed request for a determination that the Buyer Pension Plan is qualified under Section 401(a) of the Code and a written commitment from Buyer that it will make all amendments requested by the IRS to obtain a favorable determination letter, or (III) an opinion of counsel, reasonably acceptable to Seller, that the Buyer Pension Plan is qualified under Section 401(a) of the Code. Unless Seller and Buyer agree otherwise, all transfers shall occur on the last business day of a month. Seller's actuary shall be responsible for the required actuarial certification under Section 414(l) of the Code. Upon the transfer of assets described herein, Buyer and the Buyer's Pension Plan shall assume all liabilities and obligations of Seller and its Affiliates and the Qwest Pension Plan with respect to the Dex Pension Participants under or in connection with the Qwest Pension Plan, and Buyer shall become responsible for all benefits due under the Qwest Pension Plan with respect to each Dex Pension Participant as of the Closing Date (except for liabilities for such benefits as have been paid by the Qwest Pension Plan after the Closing Date and before the date of the asset transfer in accordance with the last sentence of Section 6.5(c)(ii)); for this purpose, liabilities shall include all accrued benefits within the meaning of Section 411(d)(6) of the Code, all ancillary benefits (such as the death benefits set forth in Article VII of the Qwest Pension Plan and disability benefits set forth in Appendix J thereof) and any other benefits, including enhanced retirement pension benefits under Appendix R or additional defined lump sum benefits under Appendix S of the Qwest Pension Plan. (iv) The term "Accrued Liability" shall mean the amount calculated in accordance with the actuarial assumptions and methods used by the Qwest Pension Plan as of the date hereof to calculate the "current liability" under Section 412(l)(9)(C) of the Code, as set forth in Section 6.5(c) of Seller's Disclosure Schedule, but using a discount rate equal to the discount rate that would be used by the Qwest Pension Plan as of the date hereof to compute a lump sum distribution from the Plan consistent with Section 417(e)(3) of the Code, and the amount expressly called for to be transferred pursuant to this Section 6.5(c) shall be adjusted to the extent necessary for the required approval of any Governmental Entity (including the IRS and the PBGC) and to satisfy Section 414(1) of the Code as well as Section 4044 of ERISA. The Accrued Liability shall be agreed upon by an enrolled actuary designated by Seller and an enrolled actuary designated by Buyer each of whom shall be provided with information reasonably necessary to calculate the Accrued Liability in all material respects and to verify that such calculation has been performed in a manner consistent with accepted actuarial practices and the terms of this Agreement. If there is a good faith dispute between Seller's actuary and Buyer's actuary as to the amount to be transferred to the Buyer's Pension Plan under this Agreement and such dispute remains unresolved for 14 days, the chief financial officers of Seller and Buyer shall endeavor to resolve the dispute. If such dispute remains unresolved for 30 days, Seller and Buyer shall select and appoint a third actuary who is mutually satisfactory to both Seller and Buyer. The reasoned written decision of such third party actuary shall be rendered within 30 days and shall be conclusive as to any dispute for which such actuary was appointed. The cost of such third party actuary shall be divided equally between Seller and Buyer. Each of Seller and Buyer shall be responsible for the cost of its own actuary.

Buyer Pension Plan. (i) No later than the Closing Date, Buyer shall establish or maintain, or shall cause one of its Affiliates to establish or maintain, a defined benefit pension plan (the "Buyer Pension PlanBUYER PENSION PLAN") that, subject to this Section 6.5(c), (A) for a period of not less than twelve (12) months following the Closing Date, provides benefits to each non-union Transferred Employee that are no less favorable in the aggregate than those provided by the Qwest Pension Plan based on terms of the Qwest Pension Plan applicable to such Transferred Employee as of the Closing Date, and (B) for a period provided by the applicable CBA, provides benefits for each union-represented Transferred Employee that are substantially identical to those provided by the Qwest Pension Plan based on terms of the Qwest Pension Plan applicable to such Transferred Employee as of the Closing Date. The Buyer Pension Plan shall be established and/or maintained for the benefit of each Transferred Employee (collectively, the "Dex Pension ParticipantsDEX PENSION PARTICIPANTS") who participated or had accrued benefits in the Qwest Pension Plan immediately prior to the Closing Date, and shall be (or remain) qualified under Section 401(a) of the Code, and the trust which is a part of the Buyer Pension Plan shall be exempt from tax under Section 501(a) of the Code. Each Dex Pension Participant who is a participant in the Qwest Pension Plan as of the Closing Date shall become a participant in the Buyer Pension Plan as of the Closing Date. The Buyer Pension Plan and the trust which is a part of such plan (and any successor to such plan and/or trust) shall provide (I) that with respect to assets transferred to the Buyer Pension Plan from the Qwest Pension Plan, such assets shall be held by the trust which is a part of the Buyer Pension Plan for the exclusive benefit of the participants in such plan, (II) that the accrued benefits as of the Xxxxxx 49 EXECUTION Closing Date of each Dex Pension Participant may not be decreased by amendment or otherwise, (III) that each Dex Pension Participant shall have the right to receive his or her benefit accrued through the Closing Date under the Qwest Pension Plan in any optional form available to such Dex Pension Participant with respect to such benefit provided under the Qwest Pension Plan, (IV) that during the periods set forth in the first sentence of this paragraph, each Transferred Employee shall accrue benefits thereunder pursuant to benefit formulas that satisfy such sentence, and (V) that each Dex Pension Participant shall be credited for service with Qwest and its Affiliates (or U S WEST, if applicable) for eligibility, vesting, early retirement, and, contingent upon the transfer of assets set forth below, benefit accrual and compensation earned with Qwest and its Affiliates (or U S WEST, if applicable) to the extent such service was credited under the Qwest Pension Plan. In addition to the foregoing, subject to the transfer of pension assets described in this Section 6.5(c), upon termination of employment with Buyer and its Affiliates, each Transferred Employee's accrued benefit under the Buyer Pension Plan shall be not less than the sum of (x) the benefit accrued based on service with Qwest and its Affiliates (or U S WEST, if applicable) through the Closing Date, determined on the basis of the benefit formula, rights and features of the Qwest Pension Plan as in effect on the Closing Date, but using such Transferred Employee's final years of compensation with Buyer or its Affiliates for this purpose (except to the extent that the Qwest Pension Plan provides, at the time of the Closing Date, that compensation has already been frozen for the Transferred Employee under the applicable formula), plus (y) the benefit accrued based on service following the Closing Date, determined on the basis of the benefit formula, rights and features of the Buyer Pension Plan as in effect from time to time; provided, however, that clauses (x) and (y) shall not restrict Buyer's right to amend or terminate the Buyer Pension Plan subsequent to expiration of the applicable periods set forth in the first sentence of this paragraph so long as accrued benefits as of the effective date of the amendment are not reduced. (ii) As soon as practicable following the Closing Date, Seller shall cause its actuary to calculate the Accrued Liability (as defined in Section 6.5(c)(iv)) of the Dex Pension Participants as of the Closing Date. Seller shall cause to be transferred to a trust established by Buyer as part of the Buyer Pension Plan a combination of cash and readily tradable assets (as mutually agreed by Seller and Buyer) equal to the Accrued Liability for all Dex Pension Participants, determined as of the Closing Date pursuant to Section 6.5(c)(iv). For this purpose, the value of the assets shall be determined based on the audited reports of the trustee of the Qwest Pension Plan. The amount finally determined in accordance with the foregoing to be transferred from the Qwest Pension Plan to the Buyer Pension Plan shall be adjusted to take into account the actual investment return of the Qwest Pension Plan from the Closing Date until the date of the asset transfer (provided, that the investment return for the month in which the transfer occurs shall be deemed to be the average monthly rate on the Mellon Trust Short Term Interest Fund (STIF) in which the Qwest Pension Plan holds certain temporary cash funds from time to time), and shall be decreased by any benefit payment made to or with respect to the Dex Pension Participants under the Qwest Pension Plan during such period; it being understood that any benefits payable to a Dex Pension Participant who retires or terminates employment with Buyer and its Affiliates after the Closing Date and prior to Xxxxxx 50 EXECUTION the date of the asset transfer described herein and who is eligible to receive a distribution at such time shall be paid from the Qwest Pension Plan until the date of the transfer. (iii) The transfer of assets from the Qwest Pension Plan to the Buyer Pension Plan shall be made as soon as practicable, but not later than 270 days after the Closing Date, following the determination pursuant to Section 6.5(c)(iv) of the applicable amount to be transferred in accordance with Section 6.5(c)(iv). Notwithstanding the foregoing, no transfer shall be made until such time as Seller has been provided evidence reasonably satisfactory to Seller that (A) Buyer has established a trust as part of the Buyer Pension Plan, (B) that the Buyer Pension Plan satisfies the requirements for a qualified plan under Section 401(a) of the Code and that such trust is exempt from tax under Section 501(a) of the Code, and (C) Buyer has provided documentation regarding the tax-qualification of the Buyer Pension Plan; such documentation consisting of either (I) a favorable determination from the IRS, (II) a filed request for a determination that the Buyer Pension Plan is qualified under Section 401(a) of the Code and a written commitment from Buyer that it will make all amendments requested by the IRS to obtain a favorable determination letter, or (III) an opinion of counsel, reasonably acceptable to Seller, that the Buyer Pension Plan is qualified under Section 401(a) of the Code. Unless Seller and Buyer agree otherwise, all transfers shall occur on the last business day of a month. Seller's actuary shall be responsible for the required actuarial certification under Section 414(l) of the Code. Upon the transfer of assets described herein, Buyer and the Buyer's Pension Plan shall assume all liabilities and obligations of Seller and its Affiliates and the Qwest Pension Plan with respect to the Dex Pension Participants under or in connection with the Qwest Pension Plan, and Buyer shall become responsible for all benefits due under the Qwest Pension Plan with respect to each Dex Pension Participant as of the Closing Date (except for liabilities for such benefits as have been paid by the Qwest Pension Plan after the Closing Date and before the date of the asset transfer in accordance with the last sentence of Section 6.5(c)(ii)); for this purpose, liabilities shall include all accrued benefits within the meaning of Section 411(d)(6) of the Code, all ancillary benefits (such as the death benefits set forth in Article VII of the Qwest Pension Plan and disability benefits set forth in Appendix J thereof) and any other benefits, including enhanced retirement pension benefits under Appendix R or additional defined lump sum benefits under Appendix S of the Qwest Pension Plan. (iv) The term "Accrued LiabilityACCRUED LIABILITY" shall mean the amount calculated in accordance with the actuarial assumptions and methods used by the Qwest Pension Plan as of the date hereof to calculate the "current liability" under Section 412(l)(9)(C) of the Code, as set forth in Section 6.5(c) of Seller's Disclosure Schedule, but using a discount rate equal to the discount rate that would be used by the Qwest Pension Plan as of the date hereof to compute a lump sum distribution from the Plan consistent with Section 417(e)(3) of the Code, and the amount expressly called for to be transferred pursuant to this Section 6.5(c) shall be adjusted to the extent necessary for the required approval of any Governmental Entity (including the IRS and the PBGC) and to satisfy Section 414(1) of the Code as well as Section 4044 of ERISA. The Accrued Liability shall be agreed upon by an enrolled actuary designated by Seller and an enrolled actuary designated by Buyer each of whom shall be provided with information reasonably necessary to calculate the Accrued Liability in all material respects and to verify that such calculation has been performed in a manner consistent with accepted actuarial practices and the terms of this Agreement. If there is a good faith dispute between Seller's actuary and Buyer's actuary as to the amount to be transferred to the Buyer's Pension Plan under this Agreement and such dispute remains unresolved for 14 days, the chief financial officers of Seller and Buyer shall endeavor to resolve the dispute. If such dispute remains unresolved for 30 days, Seller and Buyer shall select and appoint a third actuary who is mutually satisfactory to both Seller and Buyer. The reasoned written decision of such third party actuary shall be rendered within 30 days and shall be conclusive as to any dispute for which such actuary was appointed. The cost of such third party actuary shall be divided equally between Seller and Buyer. Each of Seller and Buyer shall be responsible for the cost of its own actuary.