No Personal Liability of Shareholders, Trustees, etc No Shareholder of the Trust shall be subject in such capacity to any personal liability whatsoever to any Person in connection with Trust Property or the acts, obligations or affairs of the Trust. Shareholders shall have the same limitation of personal liability as is extended to stockholders of a private corporation for profit incorporated under the Delaware General Corporation Law. No Trustee or officer of the Trust shall be subject in such capacity to any personal liability whatsoever to any Person, save only liability to the Trust or its Shareholders arising from bad faith, willful misfeasance, gross negligence or reckless disregard for his duty to such Person; and, subject to the foregoing exception, all such Persons shall look solely to the Trust Property for satisfaction of claims of any nature arising in connection with the affairs of the Trust. If any Shareholder, Trustee or officer, as such, of the Trust, is made a party to any suit or proceeding to enforce any such liability, subject to the foregoing exception, he shall not, on account thereof, be held to any personal liability. Any repeal or modification of this Section 5.1 shall not adversely affect any right or protection of a Trustee or officer of the Trust existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
Employee Benefit Plans (a) Schedule 3.17(a) hereto sets forth a complete list of each written and binding oral profit-sharing, pension, severance, thrift, savings, incentive, change of control, employment, retirement, bonus, deferred compensation, group life and health insurance, and other employee benefit plan, agreement, arrangement or commitment, which is maintained, contributed to (including arrangements that involve merely forwarding employee payroll deductions) or required to be contributed to by the Company, any of its Subsidiaries or ERISA Affiliates or with respect to which the Company, any of its Subsidiaries or ERISA Affiliates may have any liability (all of which are hereinafter referred to as the "Benefit Plans"). Neither the Company, nor any of its Subsidiaries or any ERISA Affiliates has any formal commitment, or intention communicated to employees, to create any additional Benefit Plan or make any material amendment or modification to any existing Benefit Plan.
(b) With respect to each of the Benefit Plans, the Company has delivered to the Prior Purchasers true, correct and complete copies of each of the following documents, if applicable: (i) all plan documents (including all amendments and modifications thereof) and in the case of binding oral Benefit Plans, a written description thereof, and in either case all related agreements including the trust agreement and amendments thereto, insurance contracts, and investment management agreements; (ii) the last three filed Form 5500 series and all schedules thereto, as applicable; (iii) the current summary plan descriptions and all material modifications thereto; (iv) the three most recent audited financial statements and actuarial valuation reports, as applicable; (v) for the last three years, all correspondence with the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation and any other Governmental Authority regarding the operation or the administration of any Benefit Plan; and (vi) any Form 5310 or Form 5330 filed with the Internal Revenue Service.
(c) Each Benefit Plan has been operated and administered (i) in accordance with its terms and (ii) in material compliance with applicable Requirements of Law including, but not limited to, ERISA and the Code. Each Benefit Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and which is intended to be qualified under Section 401(a) of the Code and each related trust which is intended to be qualified under Section 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service and to the Knowledge of the Company, there are no circumstances that are reasonably likely to result in such Pension Plan or related trust failing to be so qualified. There is no pending or, to the Knowledge of the Company, threatened audit by any Governmental Authority, litigation or other proceeding relating to any of the Benefit Plans, any fiduciary thereof or service provider thereto, nor, to the Knowledge of the Company, is there any reasonable basis for any of the foregoing to be initiated. No Claim with respect to the administration or the investment of the assets of any Benefit Plan (other than routine claims for benefits) is pending or, to the Knowledge of the Company, threatened. The Company has not engaged in a transaction with respect to any Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject the Company or any Benefit Plan to material Taxes or penalties imposed by either Section 4975 of the Code or Section 502(i) of ERISA. No action has been taken with respect to any of the Benefit Plans to either terminate any of the Benefit Plans or to cause distributions, other than in the ordinary course of business to participants under such Benefit Plans.
(d) None of the Benefit Plans is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA or is a "multiemployer plan" as defined in Section 3(37) of ERISA. Neither the Company nor any of its Subsidiaries or ERISA Affiliates has at any time within the six-year period ending on the date hereof maintained or contributed to, and has not been obligated to contribute to, any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA or such a multiemployer plan.
(e) Each Pension Plan that is not intended to be qualified under Section 401(a) of the Code is (i) exempt from Parts 2, 3 and 4 of Title I of ERISA as an unfunded plan that is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, as described in Sections 201(2), 301(a)(3) and 401(a)(l) of ERISA; and (ii) either (1) has complied and continues to comply with all reporting and disclosure requirements of Part 1 of Title I of ERISA, or (2) has satisfied the alternative method for such compliance set forth in 29 C.F.R. § 2520.104-23.
(f) All insurance premiums under any insurance policy related to a Benefit Plan, all contributions (including all employer contributions and employee salary reduction contributions), and all liabilities and expenses of the Company in respect of any Benefit Plan for any period up to and including the Closing Date have been made, paid, or accrued and booked on or before the Closing Date, and, to the Knowledge of the Company, with respect to any such insurance policy or premium payment obligation, neither the Company nor any of its Subsidiaries or ERISA Affiliates is subject to a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability. There are no unfunded obligations under any Benefit Plan that are not fully reflected on the Financial Statements.
(g) Each Benefit Plan which is a "group health plan" within the meaning of Section 5000(b)(l) of the Code and Section 607(1) of ERISA has been administered in compliance with, and the Company and each of its Subsidiaries has otherwise complied in all respects with, (i) the requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder; (ii) the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations promulgated thereunder; and (iii) the Medicare Secondary Payor Provisions of Section 1862 of the Social Security Act and the regulations promulgated thereunder.
(h) No Benefit Plan is a Retiree Welfare Plan. To the Knowledge of the Company, no communications have been made to participants with respect to guaranteeing benefits under any Benefit Plan.
(i) The consummation of any of the transactions contemplated by the Transaction Documents will not, either alone or in combination with any other event (including but not limited to the termination of any individual's employment within a fixed period of time following such consummation) (x) entitle any employee, director or consultant to severance pay, unemployment compensation or any other payment, (y) accelerate the time of payment or vesting or increase the amount of payment with respect to any compensation due to any employee, director or consultant or (z) result in any payment which could constitute an "excess parachute payment" within the meaning of Section 280G of the Code.
(j) All persons to whom the Company or any of its Subsidiaries or ERISA Affiliates has made payments for the performance of services during the six-year period ending on the Closing Date have been properly classified as employees or non-employees for purposes of income and employment withholding Taxes and coverage under and participation in all of the Benefit Plans, and no individual who has performed services for the Company or any of its Subsidiaries or ERISA Affiliates has been improperly excluded from participation in any Benefit Plan. Neither the Company nor any of its Subsidiaries or ERISA Affiliates, has any liability with respect to any employee leased from another employer.
(k) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act"), or any similar state or local law which remains unsatisfied.
