PENSION PLAN TRANSFER AGREEMENT
Exhibit 10.1
Execution Version
This Pension Plan Transfer Agreement (this “Agreement”), dated as of October 6, 2010,
is entered into by and between Belo Corp., a Delaware corporation (“BLC”), and A. H. Belo
Corporation, a Delaware corporation (“AHC”).
RECITALS
WHEREAS, BLC and AHC entered into a Separation and Distribution Agreement, dated as of
February 8, 2008 (the “Distribution Agreement”), pursuant to which the businesses of AHC
and its subsidiaries were separated from the businesses of BLC and its other subsidiaries in a
corporate spin-off effective February 8, 2008;
WHEREAS, at the time of the spin-off, BLC retained sponsorship of The G. B. Dealey Retirement
Pension Plan, a defined benefit pension plan (the “GBD Pension Plan”) that provides
benefits with respect to current and former employees of BLC, AHC and their subsidiaries;
WHEREAS, to further the separation of the companies, BLC and AHC have agreed to divide the GBD
Pension Plan into separately-sponsored pension plans by transferring a portion of the GBD Pension
Plan to one or more plans to be sponsored by AHC (the “Transfer(s)”);
WHEREAS, BLC has authorized the transfer of certain assets and liabilities from the GBD
Pension Plan effective as of 12:01 a.m. on January 1, 2011 (the “Transfer Date”), to one or
more newly established defined benefit pension plans sponsored by AHC (the “AHC Pension
Plans”) for the benefit of those participants, beneficiaries of deceased participants and
alternate payees in the GBD Pension Plan described in the first sentence of Section 1(a) below (the
“Transferred Participants”) (with any participants, beneficiaries of deceased participants
and alternate payees in the GBD Pension Plan other than Transferred Participants being defined
herein as the “Non-Transferred Participants”);
WHEREAS, AHC has agreed to cause the AHC Pension Plans to assume the aggregate liability and
associated assets for benefits accrued by the Transferred Participants under the GBD Pension Plan
as of the Transfer Date, subject to the terms and conditions of this Agreement;
WHEREAS, assets of the GBD Pension Plan are held in a trust established under the Master Trust
Agreement (the “Master Trust Agreement”) dated as of February 1, 2002, by and between BLC
and The Bank of New York, as trustee (the “Trustee”);
WHEREAS, the amount of benefit liabilities assumed by each AHC Pension Plan and the amount of
assets transferred to each AHC Pension Plan in connection with the assumption of such liabilities
will be determined by the actuary for the GBD Pension Plan under the provisions of Title IV of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and Section 414(l)
of the Internal Revenue Code of 1986, as amended (the “Code”); and
WHEREAS, BLC and AHC entered into that certain Employee Matters Agreement by and between BLC
and AHC dated as of February 8, 2008 (the “Employee Matters Agreement”), to address certain
employee, benefit and compensation matters relating to the corporate spin-off,
including BLC’s and AHC’s agreement relating to the GBD Pension Plan, and herein desire to
amend such agreement to reflect the Transfer(s).
NOW, THEREFORE, the parties agree as follows:
1. Transfer of Assets and Administration.
(a) BLC agrees to cause the GBD Pension Plan to transfer to the AHC Pension Plans, and
AHC agrees to cause the AHC Pension Plans to assume, accept and be solely responsible for,
all of the accrued benefits, associated assets, debts, liabilities, contracts, commitments
and other obligations, absolute or contingent, of the GBD Pension Plan as of the Transfer
Date, with respect to (i) each individual who, as of the Transfer Date, is actively employed
by AHC or any of its Subsidiaries, (ii) each individual who, as of the Transfer Date, is a
former employee of BLC, AHC or any of their current or former Subsidiaries, if such
individual’s last employment with any such entity was with AHC or one of its current or
former Subsidiaries, (iii) certain other individuals mutually agreed to by BLC and AHC, and
(iv) each beneficiary or alternate payee under the GBD Pension Plan of a person described in
(i), (ii) or (iii) above. Concurrently with the execution and delivery of this Agreement,
BLC has provided to AHC a list of the individuals who, to BLC’s knowledge, would constitute
the Transferred Participants if the Transfer(s) were to occur as of the date of this
Agreement. BLC will provide an updated list of Transferred Participants as soon as
practicable following the Transfer Date, but in no event any later than the dates set forth
in Section 4(e) hereof; provided, however, that such list is not exclusive,
and in the event of any conflict between the description of Transferred Participants in the
first sentence of this Section 1(a) and such list, the first sentence of this Section 1(a)
will govern. For purposes of this Agreement, “Subsidiary” means, with respect to
either party, any other person of which the party (either alone or together with any other
Subsidiary of such party) owns, directly or indirectly, a majority of the stock or other
equity interests the holders of which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation or other legal entity.
(b) As soon as practicable after the date hereof, AHC will establish and adopt the AHC
Pension Plans, the terms of which will be substantially identical to the terms of the GBD
Pension Plan, effective no later than the Transfer Date. On or before November 1, 2010, AHC
will notify BLC of (i) the number and identity of each of the AHC Pension Plans, (ii) the
specific AHC Pension Plan to which the accrued benefit under the GBD Pension Plan of each
Transferred Participant is to be transferred, and (iii) any other details reasonably
requested by BLC. The entire accrued benefit under the GBD Pension Plan of each Transferred
Participant will be allocated to one and only one AHC Pension Plan.
(c) The assets of the GBD Pension Plan that are allocated to the AHC Pension Plans and
transferred to the AHC Pension Plans pursuant to the preliminary and final transfer
provisions of Section 1(f) will be taken pro-rata from the investments held by the GBD
Pension Plan and transferred to the AHC Pension Plans in kind, to the extent feasible.
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(d) The allocation of assets and the value of assets to be transferred from the GBD
Pension Plan to each AHC Pension Plan (each such value, a “Transfer Amount”) will be
determined in accordance with the priority categories under Section 4044 of ERISA on the
basis of the assumptions used for such purpose by the Pension Benefit Guaranty Corporation
(the “PBGC”) as of the Transfer Date, as determined by the actuary for the GBD
Pension Plan. AHC and the actuary for the AHC Pension Plans, the AHC Board of Directors or
any committee of such Board of Directors may review the calculations of each Transfer Amount
(as adjusted in accordance with Section 1(f) hereof) for the sole purpose of confirming that
such calculation, and the list of Transferred Participants, was made in accordance with
Sections 1(a), (d) and (f) hereof, and the BLC actuary will provide AHC with such
information as shall be reasonably necessary and available in connection with such
confirmation process. Any dispute concerning the calculation, or such list, must be
communicated to BLC in writing within 90 days after submission to AHC of the calculation, or
such list, and any underlying data relating thereto, and will be resolved in accordance with
Section 8(j) of this Agreement.
(e) On a date or dates in 2011 to be determined by mutual agreement of AHC and BLC, and
in no event later than January 15, 2011 with respect to the minimum quarterly contribution
required to be made on such date under the Code with respect the 2010 plan year for the GBD
Pension Plan, and in no event later than March 31, 2011 with respect to any remaining
minimum contribution required to be made under the Code with respect to such 2010 plan year,
BLC will fully fund the remaining minimum contributions in respect of such 2010 plan year,
as determined by BLC in its reasonable discretion, including elective assumptions, methods
and other determinations by BLC, and in all cases calculated in accordance with Sections 412
and 430 of the Code (the aggregate amount of such minimum contributions shall be referred to
herein as the “Remaining Minimum 2010 Plan Contributions”). Immediately prior to
BLC’s payment of all or any portion of the Remaining Minimum 2010 Plan Contributions to the
GBD Pension Plan, AHC will transfer immediately available funds to BLC in an amount, when
coupled with the funding credits referenced in Sections 4(i) and (j) hereof, equal to 56.5%
of such contributions. Except for any retroactive adjustment that is required by law and
results in an increase in the minimum required contribution for the 2010 or any prior plan
years (which AHC will reimburse BLC in advance for 56.5% of the amount of such increase),
upon BLC’s receipt of such funds from AHC, AHC will be deemed to have fully satisfied its
reimbursement obligation in respect of the 2010 or any prior plan years for the GBD Pension
Plan as required under Section 3.1 of the Employee Matters Agreement, in existence on the
date of this Agreement or as amended pursuant to Section 2 hereof, notwithstanding any
contrary or conflicting provisions thereof. Other than the contributions referred to in
this Section 1(e), BLC will not make any further contributions to the GBD Pension Plan in
respect of the 2010 or any previous plan year.
(f) On the Transfer Date or as soon as practicable thereafter, but in no event later
than January 4, 2011, BLC will cause the Trustee of the GBD Pension Plan to transfer to the
trustee of each AHC Pension Plan at least 80% of the estimated Transfer Amount (less the
dollar amount of the plan receivable attributable to the Remaining Minimum 2010 Plan
Contributions as of December 31, 2010 that have not been paid prior to the Transfer Date
(the “Contribution Receivable”) determined for such AHC
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Pension Plan (the “Preliminary Payment”)). As soon as practicable thereafter,
but no earlier than April 1, 2011 and no later than June 1, 2011, the actuary for the GBD
Pension Plan will determine the final Transfer Amount for each AHC Pension Plan in
accordance with the first sentence of Section 1(d) above. Not later than the
15th business day following confirmation of such determination in accordance with
such Section 1(d), BLC will cause the Trustee of the GBD Pension Plan to transfer to the
trustee of each AHC Pension Plan the excess of the final Transfer Amount for such AHC
Pension Plan over the Preliminary Payment for such AHC Pension Plan, such excess (i) to be
adjusted for actual investment experience from the Transfer Date to and including the date
of such transfer(s), and (ii) to the extent not transferred in kind, to be increased with
interest, as applicable, from the Transfer Date, in the case of cash balances other than
those resulting from payments in respect of the Contribution Receivable, and from the date
on which the applicable portion of the Contribution Receivable is paid, in the case of any
such Contribution Receivable payment, in either case to and including the date of such
transfer(s) at a rate equal to 5% per annum. Adjustment for actual investment experience
for amounts transferred to an AHC Plan in kind means the inclusion of interest paid or
accrued, dividends paid, and dividends with a record date prior to the date of determination
which have not yet been paid as of the date of such determination.
(g) Transferred Participants will cease to be participants in the GBD Pension Plan
effective as of the Transfer Date, and the GBD Pension Plan will have no liability or
obligation thereafter to the Transferred Participants. In consideration of the Preliminary
Payment, AHC will, effective as of the Transfer Date, assume all of the obligations of BLC
and any of its Subsidiaries in respect of benefits accrued by Transferred Participants under
the GBD Pension Plan on or prior to the Transfer Date. In the event that the GBD Pension
Plan pays benefits with respect to a Transferred Participant on or after the Transfer Date
that are obligations of an AHC Pension Plan, which payments BLC agrees it will cause the GBD
Pension Plan to make for the month of January 2011 to the extent that the applicable AHC
Pension Plan is unable to process such payments, (i) AHC will cause such AHC Pension Plan to
promptly reimburse the GBD Pension Plan for such benefit payments, and (ii) to the extent
not previously reimbursed, such benefit payments will reduce the amount transferred under
Section 1(f) as part of the final transfer adjustment.
(h) Effective as of the Transfer Date, neither BLC nor any fiduciary of the GBD Pension
Plan will be responsible for the investment of any assets transferred to the AHC Pension
Plans, and the applicable investment fiduciary(ies) of each AHC Pension Plan will be solely
responsible for the investment of such assets.
(i) AHC will assume the administration of the benefits for Transferred Participants,
either directly or through a third party plan administrator to be selected by AHC, as soon
as practicable after the Transfer Date, but in no event later than October 1, 2011, but with
a non-binding target date of June 1, 2011. In addition, AHC will decide promptly whether to
select a third party plan administrator and, if AHC determines to engage a third party
administrator, will use its commercially reasonable best efforts to engage such third party
plan administrator effective on or before the target date of June 1, 2011. Until AHC or a
third party assumes responsibility for administering benefits for
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the Transferred Participants, BLC will retain responsibility for administering benefits
for such Transferred Participants, and AHC will reimburse BLC for such services (i) from
February 8, 2008, to December 31, 2010 in a fixed amount equal to $249,505 and (ii) from
January 1, 2011 to the date that AHC or a third party assumes such administration based on
BLC’s actual costs at a rate not to exceed $9,500 per month. The reimbursements noted in
clauses (i) and (ii) above are intended to represent BLC’s actual out-of-pocket expenses
plus a reasonable allocation of compensation and benefit costs of BLC employees providing
such services and in all cases without duplication of any costs that may have already been
funded out of the GBD Pension Plan assets. Such transition period administrative services
will be provided by BLC on a basis reasonably consistent with the level and type of, and
subject to the same standards as, the administrative services provided by BLC prior to the
Transfer Date.
(j) AHC acknowledges that the administration of benefits by BLC for the Transferred
Participants is ministerial and temporary in nature and does not confer upon BLC any
discretionary authority or discretionary responsibility in the administration of an AHC
Pension Plan, and that neither BLC nor any of its directors, officers, employees or agents
will be acting as a fiduciary within the meaning of ERISA with respect to any AHC Pension
Plan. BLC will have no obligation to AHC or any Transferred Participant pursuant to this
Agreement or any related agreement to perform any services that, in BLC’s reasonable
judgment, would cause BLC or any of its directors, officers, employees or agents to become a
fiduciary of an AHC Pension Plan for purposes of ERISA. BLC will provide prompt written
notice to AHC of any such determination by BLC during the course of its administration of
benefits for Transferred Participants and will cooperate with AHC in good faith to permit
AHC to secure an alternative means of providing such services, but in no event will BLC be
obligated to perform such services.
2. Amendment of Employee Matters Agreement. Effective as of the Transfer Date, Section 3.1 of
the Employee Matters Agreement (captioned “The G. B. Dealey Retirement Pension Plan”) is hereby
amended by redesignating the existing Section 3.1 as Section 3.1(a), and by the addition of the
following new paragraphs at the end thereof:
(b) Notwithstanding Section 3.1(a) or any other conflicting or contrary
provision of this Agreement, Newspaper Holdco’s reimbursement obligation
with respect to the 2010 and any prior plan year of the Pension Plan will be
governed solely by Section 1(e) of that certain Pension Plan Transfer
Agreement by and between Belo and Newspaper Holdco dated as of October 6,
2010 (the “Pension Transfer Agreement”).
(c) Provided that the Preliminary Payment (as such term is defined in
the Pension Transfer Agreement) has been made, and provided further that the
Pension Transfer Agreement has not then been terminated in accordance with
its terms, then notwithstanding any conflicting or contrary provision of
this Agreement, paragraph (a) of this Section 3.1 will be modified as
follows effective as of January 1, 2011: (a) Newspaper Holdco’s right to
appoint one or more members of the committees established by Belo from time
to time to manage the assets of
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the Pension Plan will apply only for periods prior to January 1, 2011;
(b) Newspaper Holdco will not be required to reimburse Belo for any
contributions made to the Pension Plan with respect to the 2011 and later
plan years; and (c) the prior written consent of Newspaper Holdco to a
Pension Plan amendment will apply only to an amendment to the Pension Plan
that could reasonably be anticipated to increase the funding cost of the
Pension Plan for periods prior to January 1, 2011.
(d) From and after January 1, 2011, and notwithstanding any contrary or
conflicting provisions of this Agreement, the agreement of Belo and Newspaper Holdco
regarding the Pension Plan, including, without limitation, any funding,
reimbursement, liability and indemnification obligations in respect thereof, will be
governed solely by the Pension Transfer Agreement and the amended provisions of this
Section 3.1 set forth above.
3. Representations.
(a) AHC represents and warrants to BLC that:
(i) As of the Transfer Date, each of the AHC Pension Plans will satisfy the
documentary requirements for qualification under Section 401(a) of the Code.
(ii) As of the Transfer Date, the terms of each of the AHC Pension Plans will
be substantially identical to the terms of the GBD Pension Plan. In addition, AHC
has no current intention to modify the terms of any AHC Pension Plan.
(iii) All required notices to be provided by AHC under applicable law or the
terms of this Agreement with respect to the Transfer(s), including without
limitation notice to the Internal Revenue Service on Form 5310-A, have been or will
be timely made.
(b) BLC represents and warrants to AHC that:
(i) BLC has provided to AHC a current and complete copy of the GBD Pension Plan
document (including all amendments thereto) that accurately sets forth the
provisions of the GBD Pension Plan with respect to the Transferred Participants as
of the date hereof, and will promptly provide to AHC each amendment to the GBD
Pension Plan that is adopted subsequent to the date hereof and effective prior to
the Transfer Date. In addition, BLC will provide to AHC upon request, copies of the
GBD Pension Plan document (including all amendments thereto) in effect prior to the
date hereof as may reasonably be needed by AHC to obtain a favorable determination
letter from the Internal Revenue Service with respect to the AHC Pension Plans, to
determine the amount of any Transferred Participant’s benefits accrued prior to the
Transfer Date or to otherwise comply with AHC’s obligations under ERISA or the Code.
In addition, BLC has no current intention to modify the terms of the GBD Pension
Plan,
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except to the extent contemplated by Section 4(c) of this Agreement or required
by law.
(ii) The GBD Pension Plan has received a favorable determination letter from
the Internal Revenue Service dated August 13, 2002, regarding its and the related
trust’s tax-qualified status under the requirements of Sections 401(a) and 501(a) of
the Code. On or before January 31, 2011, BLC will submit a request to the Internal
Revenue Service for an updated favorable determination letter for the GBD Pension
Plan, and will adopt any amendments to the Plan or take other corrective actions
reasonably requested by the Internal Revenue Service in order to obtain such updated
favorable determination letter.
(iii) Since February 8, 2008, the GBD Pension Plan and its related trust have
been maintained in compliance with the requirements of the Code as well as the
requirements of ERISA and other applicable law, both in operation and form, and such
plan and trust continues to satisfy the tax-qualification requirements of Sections
401(a) and 501(a) of the Code (except to the extent any failure to comply with or
satisfy such requirements arises from any act or event occurring prior to February
8, 2008). Except as disclosed in writing by BLC to AHC prior to the date of this
Agreement, since August 13, 2002, BLC has not become aware of any compliance or tax
qualification issues affecting the GBD Pension Plan which have not been fully
remedied and which could reasonably be expected to have a material adverse effect on
the GBD Pension Plan.
(iv) All required notices to be provided by BLC under applicable law or the
terms of this Agreement with respect to the Transfer(s), including without
limitation notice to the Internal Revenue Service on Form 5310-A, have been or will
be timely made.
4. Additional Covenants.
(a) Neither AHC nor an AHC Pension Plan will have any liability with respect to any
participant, beneficiary or alternate payee in the GBD Pension Plan other than the
Transferred Participants.
(b) BLC will prepare and issue a Summary of Material Modifications in compliance with
Section 102 and Section 104(a) and (b) of ERISA with respect to the Transfer(s) and will
provide AHC with a copy of such summary at a reasonable time prior to its publication. BLC
and AHC shall use their respective commercially reasonable best efforts to jointly consult
and/or prepare all other communications to plan participants concerning the Transfer(s).
(c) Prior to the Transfer Date, BLC will amend the GBD Pension Plan to specify that the
right of a Transferred Participant who has incurred a bona fide separation from service from
BLC and its subsidiaries to commence receiving benefits from the GBD Pension Plan will not
be affected by such participant’s subsequent employment
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with a participating employer in the GBD Pension Plan or a successor plan, including
without limitation through the Transfer(s) contemplated by this Agreement.
(d) BLC and AHC will cooperate in good faith to enable BLC, AHC, the GBD Pension Plan
and the AHC Pension Plans to comply with all applicable reporting and disclosure
requirements, including without limitation the preparation and filing of any PBGC notices,
Internal Revenue Service filings, periodic Securities Exchange Commission filings and annual
reports on Form 5500, that reflect the transfer of the Transferred Participants as of the
Transfer Date.
(e) BLC will, or will cause the actuary for the GBD Pension Plan to, transfer to AHC
and to the actuary for the AHC Pension Plans, in an electronic format (where possible)
reasonably acceptable to the actuary of the AHC Pension Plans, the data relating to each
Transferred Participant necessary to determine benefit amounts (the “Transferred
Participant Data”). Transferred Participant Data as of January 1, 2010, will be
transferred no later than February 28, 2011, and Transferred Participant Data as of January
1, 2011, will be transferred no later than April 30, 2011.
(f) AHC will provide to BLC a copy of each amendment to an AHC Pension Plan that is
adopted or effective prior to the date that BLC ceases providing administrative support to
AHC pursuant to Section 1(i). Each such amendment will be provided to BLC, to the extent
practicable, at least 30 days prior to the effective date of such amendment, and no such
amendment may increase the administrative support obligations of BLC pursuant to Section
1(i) without BLC’s written consent.
(g) AHC will timely request a favorable determination letter from the Internal Revenue
Service with respect to the qualification of each AHC Pension Plan and trust under Sections
401(a) and 501(a) of the Code and will amend the AHC Pension Plans in any respect required
by the Internal Revenue Service as a condition of receiving such a favorable determination
letter.
(h) Neither AHC nor BLC will, directly or indirectly, initiate, solicit or encourage
any person to challenge or threaten the Transfer(s).
(i) As of the Transfer Date, a transfer credit in the amount of $500,000 (the “AHC
Transfer Credit”) will be established by BLC in favor of AHC. The AHC Transfer Credit
will be applied by AHC, as determined by AHC, to fund all or a portion of its obligation to
reimburse BLC for contributions to the GBD Pension Plan pursuant to Section 1(e) hereof or
the Employee Matters Agreement (as amended pursuant to Section 2 hereof). BLC agrees to
accept the application of the AHC Transfer Credit to fund up to $500,000 of such obligation
in lieu of AHC’s cash payment of the same amount.
(j) The remaining refund amount credited to AHC pursuant to that certain Tax Matters
Agreement by and between BLC and AHC dated as of February 8, 2008, and that certain letter
agreement between BLC and AHC dated as of September 14, 2009, as either such agreement shall
have been amended (estimated at approximately $3.4 million at August 31, 2010), will be
applied by AHC, as determined by AHC, to fund all or a
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portion of its obligation to reimburse BLC for contributions to the GBD Pension Plan
pursuant to Section 1(e) hereof or the Employee Matters Agreement (as amended pursuant to
Section 2 hereof). BLC agrees to accept the application of such remaining refund amount to
fund such obligation in lieu of AHC’s cash payment of the same amount. If any refund amount
remains after such reimbursements, such amount shall be paid to AHC as soon as practicable
after such amount can be determined.
5. Cooperation.
(a) AHC and BLC will each use their commercially reasonable best efforts to take, or
cause to be taken, all actions, and do, or cause to be done, all things that, in either
case, are necessary, proper or advisable under law or otherwise to consummate and make
effective the Transfer(s). AHC and BLC each agree to cooperate and to use their
commercially reasonable best efforts to vigorously contest and to resist any action,
including administrative or judicial action, and to have vacated, lifted, reversed or
overturned any order (whether temporary, preliminary or permanent) of any court or other
governmental authority that is in effect and that restricts, prevents or prohibits the
consummation of the Transfer(s), including the vigorous pursuit of all available avenues of
administrative and judicial appeal.
(b) BLC will use its commercially reasonable best efforts to cooperate with and provide
assistance to AHC as AHC may reasonably request in order to (i) determine the amount of any
Transferred Participant’s benefit, (ii) resolve any benefit dispute with a Transferred
Participant and (iii) resolve any challenge by a government agency or other party with
standing to make such challenge that the benefit of any Transferred Participant or the
administration of such benefit fails to comply with applicable provisions of the Code, ERISA
or other applicable law. Such cooperation will include without limitation making available
to AHC such witnesses as AHC may reasonably request to assist in the defense of any claims
against the AHC Pension Plans involving any Transferred Participant.
(c) BLC will provide AHC and its representatives access to records in its possession
relating to the Transferred Participant Data (and not already in AHC’s or its actuary’s or
other professional representative’s possession) during normal business hours at such times
as AHC may reasonably request, including without limitation available payroll and service
records, that may be necessary to verify the Transferred Participant Data and all other
available records relating to the administration of benefits of Transferred Participants
that may be necessary to resolve benefit disputes with Transferred Participants or
demonstrate compliance with applicable provisions of the Code, ERISA or other applicable
law.
(d) In the event of a mistake of fact or law resulting in a conclusion that the
benefits transferred or the assets relating thereto were calculated erroneously, the sponsor
of the plan injured by the mistake will notify the other party within three months of
discovery of the mistake, and AHC and BLC will attempt to reach an agreement as to the
equitable resolution of the mistake, which may involve a subsequent transfer of assets
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and/or liabilities from one plan to another. Any dispute regarding the resolution of
any such mistake will be resolved in accordance with Section 8(j) of this Agreement.
6. Indemnification.
(a) Claims Based on Representations, Warranties and Covenants. BLC will
indemnify, defend, release, discharge and hold harmless each of AHC, AHC’s officers,
directors and employees, the AHC Pension Plans, each fiduciary of the AHC Pension Plans and
their respective successors (individually an “AHC Indemnified Party”) from and
against any and all losses, claims, damages or liabilities, including reasonable legal fees
and expenses (“Losses”), to which the AHC Indemnified Party may become subject
arising out of or relating to BLC’s breach of any representation or covenant in this
Agreement. AHC will indemnify, defend, release, discharge and hold harmless each of BLC,
BLC’s officers, directors and employees, the GBD Pension Plan, each fiduciary of the GBD
Pension Plan and their respective successors (individually a “BLC Indemnified
Party”) against any and all Losses to which the BLC Indemnified Party may become subject
arising out of or relating to AHC’s breach of any representation or covenant in this
Agreement.
(b) Claims by Transferred Participants and Non-Transferred Participants.
Except to the extent covered by BLC’s indemnification obligations set forth in clause (a) of
this Section 6, AHC will indemnify, defend, release, discharge and hold harmless each BLC
Indemnified Party against any and all Losses to which any BLC Indemnified Party may become
subject arising out of or relating to any claim asserted by a Transferred Participant or
representative thereof, regardless of whether such Losses arise out of or relate to the GBD
Pension Plan or an AHC Pension Plan, with respect to acts or omissions occurring prior to
February 8, 2008. Except to the extent covered by AHC’s indemnification obligations set
forth in clause (a) of this Section 6, BLC will indemnify, defend, release, discharge and
hold harmless each AHC Indemnified Party against any and all Losses to which any AHC
Indemnified Party may become subject arising out of or relating to any claim asserted by a
Non-Transferred Participant or representative thereof, regardless of whether such Losses
arise out of or relate to the GBD Pension Plan or an AHC Pension Plan, with respect to acts
or omissions occurring prior to February 8, 2008.
(c) Claims by Governmental Entities and Third Parties. Except to the extent
covered by BLC’s or AHC’s indemnification obligations set forth in clause (a) of this
Section 6, with respect to any Losses arising out of or relating to any claim asserted by a
governmental entity or a third party (other than a Transferred Participant or a
Non-Transferred Participant or a representative thereof), regardless of whether such Losses
arise out of or relate to the GBD Pension Plan or an AHC Pension Plan, and with respect to
acts or omissions occurring prior to February 8, 2008, (i) AHC will indemnify, defend,
release, discharge and hold harmless each BLC Indemnified Party against any and all such
Losses to which any BLC Indemnified Party may become subject which relate solely to
Transferred Participants, (ii) BLC will indemnify, defend, release, discharge and hold
harmless each AHC Indemnified Party against any and all such Losses to which any AHC
Indemnified Party may become subject which relate solely to Non-Transferred
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Participants, and (iii) with respect to Losses which relate to both Transferred
Participants and Non-Transferred Participants and which cannot reasonably be allocated
pursuant to the foregoing provisions of this paragraph, AHC will indemnify, defend,
release, discharge and hold harmless each BLC Indemnified Party against 56.5% of any and all
such Losses to which any BLC Indemnified Party may become subject, and BLC will indemnify,
defend, release, discharge and hold harmless each AHC Indemnified Party against 43.5% of any
and all such Losses to which any AHC Indemnified Party may become subject.
(d) Claims Relating to Transition Period Administrative Services. AHC will
indemnify, defend, release, discharge and hold harmless each BLC Indemnified Party against
any and all Losses to which the BLC Indemnified Party may become subject arising out of or
relating to BLC’s transition period administration of benefits for Transferred Participants
on or after the Transfer Date pursuant to Section 1(i) hereof, including without limitation
as a result of (i) reliance on information provided by AHC, any Transferred Participant or
beneficiary of a Transferred Participant or any trustee, recordkeeper or third party validly
representing AHC, the AHC Pension Plans or any Transferred Participant or beneficiary of a
Transferred Participant; (ii) payment or refusal of payment of benefits based on
instructions of AHC, any Transferred Participant or beneficiary of a Transferred Participant
or any trustee, recordkeeper or third party validly representing AHC, the AHC Pension Plans
or any Transferred Participant or beneficiary of a Transferred Participant; or (iii) failure
of AHC to comply with the terms of the AHC Pension Plans; provided, however, that a BLC
Indemnified Party will not be so indemnified if such Losses are finally adjudged by a court
of competent jurisdiction, or are determined by any other proceeding mutually agreeable to
AHC and the BLC Indemnified Party, to have resulted primarily from the negligence or willful
misconduct of such BLC Indemnified Party or a breach by BLC of Section 1(i) of this
Agreement.
(e) Indemnification Procedures. The indemnification procedures contained in
the Distribution Agreement, construed to be applicable only to this Agreement and not any
other agreement, will apply with respect to claims and obligations under this Section 6,
subject to the dispute resolution procedures set forth in Section 8(j) of this Agreement.
7. Amendment; Termination.
(a) This Agreement may be amended, modified, waived, supplemented or superseded, in
whole or in part, only by a written document signed by duly authorized signatories of the
parties.
(b) If any government agency or other person or entity with standing threatens to
terminate the GBD Pension Plan or challenges or threatens to challenge the Transfer(s)
unless BLC or AHC agrees to any condition that would increase a Transfer Amount, accelerate
contributions to the GBD Pension Plan or otherwise increase the cost to BLC, AHC, the GBD
Pension Plan or the AHC Pension Plans, of the transfer of assets to the AHC Pension Plans,
and the satisfaction of such condition cannot be accomplished without material incremental
cost or regulatory or administrative burden for BLC or the GBD Pension Plan (as determined
by BLC in the exercise of BLC’s reasonable
11
judgment) or for AHC or the AHC Pension Plans (as determined by AHC in the exercise of
AHC’s reasonable judgment), then BLC in its sole discretion (with respect to BLC and the GBD
Pension Plan) and AHC in its sole discretion (with respect to AHC and the AHC Pension Plans)
may, in either case prior to the Transfer Date, elect not to proceed with the Transfer(s),
and upon such election the GBD Pension Plan will retain all assets and liabilities with
respect to the Transferred Participants.
8. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous negotiations, commitments and writings
with respect to such subject matter.
(b) BLC represents on behalf of itself and its Affiliates, and AHC represents on behalf
of itself and its Affiliates, as follows:
(i) each such person has the requisite corporate or other power and authority and has
taken all corporate or other action necessary in order to execute, deliver and perform this
Agreement and to consummate the transactions contemplated by this Agreement; and
(ii) this Agreement has been duly executed and delivered by such person (if such person
is a party) and constitutes its valid and binding agreement enforceable in accordance with
the terms hereof (assuming the due execution and delivery thereof by the other party),
except as such enforceability may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to creditors’ rights
generally and by general equitable principles.
For purposes of this Agreement, “Affiliate” has the meaning given that term in the
Distribution Agreement.
(c) Each party will be responsible for payment of its own fees incurred in connection
with the Transfer(s), including, without limitation, accounting, legal, actuarial and
consulting fees.
(d) This Agreement and any dispute arising out of, in connection with or relating to
this Agreement will be governed by and construed in accordance with the laws of the State of
Texas, without giving effect to the conflicts of laws principles thereof, to the extent such
laws are not preempted by ERISA.
(e) All notices, requests, claims, demands and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered personally or by
facsimile transmission or mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
If to BLC:
12
Belo Corp.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
With a copy to: Chief Financial Officer
Facsimile No.: (000) 000-0000
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
With a copy to: Chief Financial Officer
Facsimile No.: (000) 000-0000
If to AHC:
A. H. Belo Corporation
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
With a copy to: Chief Financial Officer
Facsimile No.: (000) 000-0000
Facsimile No.: (000) 000-0000
All such notices, requests and other communications will (i) if delivered personally to the
address as provided in this Section 8(e), be deemed given upon delivery, (ii) if delivered
by facsimile transmission to the facsimile number as provided in this Section 8(e), be
deemed given upon receipt and (iii) if delivered by mail in the manner described above to
the address as provided in this Section 8(e), be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by any other
person to whom a copy of such notice, request or other communication is to be delivered
pursuant to this section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving notice
specifying such change to the other party.
(f) Any term or condition of this Agreement may be waived at any time by the party that
is entitled to the benefit thereof, but no such waiver will be effective unless set forth in
a written instrument duly executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of this Agreement, in any one or
more instances, will be deemed or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not alternative.
(g) Neither this Agreement nor any right, interest or obligation hereunder may be
assigned by either party without the prior written consent of the other party, and any
attempt to do so will be void, except that each party may assign any or all of its rights,
interests and obligations hereunder to an Affiliate, provided that any such
Affiliate agrees in writing to be bound by all of the terms, conditions and provisions
contained herein; provided further that no assignment will relieve the
assigning party of any of its obligations under this Agreement, unless expressly so
provided. Subject to the preceding
13
sentence, this Agreement is binding upon, inures to the benefit of and is enforceable
by the parties hereto and their respective successors and permitted assigns.
(h) The terms and provisions of this Agreement are intended solely for the benefit of
each party and its respective Affiliates, successors or permitted assigns, and it is not the
intention of the parties to confer third-party beneficiary rights upon any other person.
(i) This Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same instrument.
(j) In the event that any dispute arises between the parties that cannot be resolved by
direct communications or through the use of each party’s respective pension plan actuary,
either party will have the right to refer the dispute for resolution to the chief financial
officers of the parties by delivering to the other party a written notice of such referral
(a “Dispute Notice”). Following receipt of a Dispute Notice, the chief financial
officers of the parties will negotiate in good faith to resolve such dispute. In the event
that the chief financial officers of the parties are unable to resolve such dispute within
15 business days after the date of the Dispute Notice, either party will have the right to
refer the dispute to the chief executive officers of the parties, who will negotiate in good
faith to resolve such dispute. In the event that the chief executive officers of the
parties are unable to resolve such dispute within 30 business days after the date of the
Dispute Notice, then except as provided below regarding a dispute under Section 1(d) or
Section 5(d), either party will have the right to commence litigation in accordance with the
provisions of the Distribution Agreement. Should any dispute concerning the calculation of
the Transfer Amount described in Section 1(d) or Section 5(d) remain unresolved for more
than 30 days, AHC and BLC will promptly select and appoint a third enrolled actuary who is
mutually satisfactory to both parties. The third actuary will recalculate the Transfer
Amount (as adjusted in accordance with Section 1(f) hereof) and if such recalculated amount
differs from the amount determined by the BLC actuary by more than 2.5 percent, then the
recalculated amount will apply for all purposes under this Agreement. If such recalculated
amount does not differ from the amount determined by the BLC actuary by more than 2.5
percent, then the amount calculated by the BLC actuary will apply for all purposes under
this Agreement. Both parties will use their best efforts to cause the third actuary’s
recalculation to be completed within 60 days of the retention of such third actuary, and the
cost of the third actuary will be divided equally between BLC and AHC. The parties agree
that all discussions, negotiations and other information exchanged between the parties
during the foregoing dispute resolution proceedings will be without prejudice to the legal
position of a party in any subsequent action.
(k) From and after the Transfer Date, in the event of any actual or threatened default
in, or breach of, any of the terms, conditions and provisions of this Agreement, the parties
agree that the party or parties to this Agreement who are or are to be thereby aggrieved
will have the right to specific performance and injunctive or other equitable relief of its
or their rights under this Agreement, in addition to any and all other rights and
14
remedies at law or in equity, and all such rights and remedies will be cumulative. The
parties agree that, from and after the Transfer Date, the remedies at law for any breach or
threatened breach of this Agreement, including monetary damages, are inadequate compensation
for any Loss, that any defense in any action for specific performance that a remedy at law
would be adequate is hereby waived, and that any requirements for the securing or posting of
any bond with such remedy are hereby waived.
(l) Subject to the prior exhaustion of the procedures set forth in Section 8(j) and to
the fullest extent permitted by applicable law, each party hereto (i) agrees that all
actions arising out of, relating to or in connection with this Agreement or for recognition
and enforcement of any judgment arising out of or in connection with this Agreement, or the
transactions contemplated hereby, will be brought only in the United States District Court
for the Northern District of Texas or any Texas State court, in each case, located in Dallas
County and not in any other State or Federal court in the United States of America or any
court in any other country, (ii) agrees to submit to the exclusive jurisdiction of such
courts located in Dallas County for purposes of all legal proceedings arising out of, or in
connection with, this Agreement and the transactions contemplated hereby, (iii) waives and
agrees not to assert any objection that it may now or hereafter have to the laying of the
venue of any such action brought in such a court or any claim that any such action brought
in such a court has been brought in an inconvenient forum, (iv) agrees that mailing of
process or other papers in connection with any such action or proceeding in the manner
provided in Section 8(e) or any other manner as may be permitted by law will be valid and
sufficient service thereof and (v) agrees that a final judgment in any such action or
proceeding will be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by applicable law.
(m) For purposes of this Agreement, the following terms will have the meanings set
forth in the Sections noted below:
| Affiliate | Section 8(b) | |||
| Agreement | Introductory Paragraph | |||
| AHC | Introductory Paragraph | |||
| AHC Indemnified Party | Section 6(a) | |||
| AHC Pension Plans | Recitals | |||
| AHC Transfer Credit | Section 4(i) | |||
| BLC | Introductory Paragraph | |||
| BLC Indemnified Party | Section 6(a) | |||
| Code | Recitals |
15
| Contribution Receivable | Section 1(f) | |||
| Dispute Notice | Section 8(j) | |||
| Distribution Agreement | Recitals | |||
| Employee Matters Agreement | Recitals | |||
| ERISA | Recitals | |||
| GBD Pension Plan | Recitals | |||
| Losses | Section 6(a) | |||
| Master Trust Agreement | Recitals | |||
| Non-Transferred Participants | Recitals | |||
| PBGC | Section 1(d) | |||
| Preliminary Payment | Section 1(f) | |||
| Remaining Minimum 2010 Plan Contributions | Section 1(e) | |||
| Subsidiary | Section 1(a) | |||
| Transfer Amount | Section 1(d) | |||
| Transfer Date | Recitals | |||
| Transfer(s) | Recitals | |||
| Transferred Participant Data | Section 4(e) | |||
| Transferred Participants | Recitals | |||
| Trustee | Recitals |
(n) The Article and Section headings contained in this Agreement are solely for the
purpose of reference and, together with the Recitals (other than the capitalized terms
defined therein), are not part of the agreement of the parties and will not in any way
affect the meaning or interpretation of this Agreement. Except as specifically set forth in
this Agreement, the provisions of this Agreement will govern in the event of any conflict
between any provision of this Agreement and that of the Distribution Agreement or any
Ancillary Agreement, as that term is defined in the Distribution Agreement.
16
(o) For purposes of this Agreement, in the context of a request from one party to the
other party, the request will not be deemed reasonable if fulfilling the request would
require undue effort or expense on the party receiving or responding to such request.
(p) If any provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, the remaining provisions of this Agreement will remain in
full force and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement.
(q) The representations, warranties, covenants, indemnities and other provisions of
this Agreement shall survive the Transfer Date and the Transfer(s) indefinitely.
17
IN WITNESS WHEREOF, the parties have caused this Pension Plan Transfer Agreement to be duly
executed as of the day and year first written above.
| BELO CORP. |
||||
| By | /s/ Xxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxx | |||
| Title: | SVP/Chief Financial Officer | |||
| A. H. BELO CORPORATION |
||||
| By | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President & Secretary | |||
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