Smith & Wesson Holding
Corporation
EQUITY UNDERWRITING
AGREEMENT
Deutsche Bank
Securities Inc.
As Representative
of the Several Underwriters
60 Wall Street, 4 th Floor
New York, New York 10005
Smith & Wesson
Holding Corporation, a Nevada corporation (the “
Company ”), proposes to sell to the several
underwriters (the “ Underwriters ”) named in
Schedule I hereto for whom you are acting as
representative (the “ Representative ” or
“ you ”) an aggregate of 5,500,000 shares (the
“ Firm Shares ”) of the Company’s common
stock, $0.001 par value (the “ Common Stock ”).
The respective amounts of the Firm Shares to be so purchased by the
several Underwriters are set forth opposite their names in
Schedule I hereto. The Company also proposes to sell at
the Underwriters’ option an aggregate of up to 500,000
additional shares of the Company’s Common Stock (the “
Option Shares ”) as set forth below. The Firm Shares
and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the “ Shares
.”
As the
Representative, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers
of Firm Shares set forth opposite their respective names in
Schedule I , plus their pro rata portion of the Option
Shares if you elect to exercise the over-allotment option in whole
or in part for the accounts of the several Underwriters.
In consideration
of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1.
Representations and
Warranties of the Company .
The
Company represents and warrants to each of the Underwriters as
follows:
(a) A
“shelf” registration statement on Form S-3 (File
No. 333-153638) with respect to the Shares has been prepared
by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the “ Act
”), and the rules and regulations (the “ Rules and
Regulations ”) of the Securities and Exchange Commission
(the “ Commission ”) thereunder and has been
filed with the Commission. The Company and the transactions
contemplated by this Agreement meet the requirements and comply
with the conditions for the use of Form S-3. The Registration
Statement meets the requirements of Rule 415(a)(1)(x) under
the Act and complies in all material respects with said rule.
Copies of such registration statement, including any amendments
thereto, the base prospectus (meeting the requirements of the Rules
and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been made available to you. Such registration statement,
together with any registration statement filed by the Company
pursuant to Rule 462(b) under the Act, is herein referred to as the
“ Registration Statement ,” which shall be
deemed to include all information omitted therefrom in reliance
upon Rules 430A, 430B or 430C under the Act and contained in
the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The term “
Prospectus ” as used in this Agreement means the form
of base prospectus together with the final prospectus supplement
first filed with the Commission pursuant to and within the time
limits described in Rule 424(b) under the Act. Any preliminary
prospectus relating to the Shares prior to the date hereof is
referred to as a “ Preliminary Prospectus .” Any
reference herein to the Registration Statement, any Preliminary
Prospectus or the Prospectus or to any amendment or supplement to
any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein, and, in
the case of any reference herein to the Prospectus, also shall be
deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus Supplement
under Rule 424(b) under the Act, and prior to the termination of
the offering of the Shares by the Underwriters.
(b) As
of the Applicable Time (as defined below) and as of the Closing
Date, neither (i) the General Use Free Writing Prospectus(es)
(as defined below) issued at or prior to the Applicable Time, the
Statutory Prospectus (as defined below) and the information
included on Schedule II hereto, all considered together
(collectively, the “ General Disclosure Package
”), nor (ii) any individual Limited Use Free Writing
Prospectus (as defined below), when considered together with the
General Disclosure Package, included or will include any untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or
omitted from any Issuer Free Writing Prospectus, in reliance upon,
and in conformity with, written information furnished to the
Company by any Underwriter through the Representative specifically
for use therein, it being understood and agreed that the only such
information is that described in Section 13 herein. As
used in this subsection and elsewhere in this Agreement:
“
Applicable Time ” means 6:00 p.m. (New York time) on
the date of this Agreement or such other time as agreed to by the
Company and the Representative.
“
Statutory Prospectus ” as of any time means the
Preliminary Prospectus relating to the Shares that is included in
the Registration Statement immediately prior to that
time.
“ Issuer
Free Writing Prospectus ” means any “issuer free
writing prospectus,” as defined in Rule 433 under the
Act, relating to the Shares in the form filed or required to be
filed with the Commission or, if not required to be filed, in the
form retained in the Company’s records pursuant to Rule
433(g) under the Act.
“ General
Use Free Writing Prospectus ” means any Issuer Free
Writing Prospectus that is identified on Schedule III
to this Agreement.
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“ Limited
Use Free Writing Prospectus ” means any Issuer Free
Writing Prospectus that is not a General Use Free Writing
Prospectus.
(c) The
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Nevada,
with corporate power and authority to own or lease its properties
and conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus. The
Company has no significant subsidiaries (as such term is defined in
Rule 1-02 of Regulation S-X promulgated by the
Commission) other than as listed in Schedule V hereto
(collectively, the “ Subsidiaries ”). Each of
the Subsidiaries has been duly organized and is validly existing as
an entity in good standing under the laws of the jurisdiction of
its organization, with corporate power and authority to own or
lease its properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus. The Subsidiaries are the only subsidiaries, direct or
indirect, of the Company. The Company and each of its Subsidiaries
are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification,
except where the failure to be so qualified could not reasonably be
expected to (i) result in any material adverse change, or
prospective material adverse change, in or affecting the business,
operations, or financial condition of the Company and of its
Subsidiaries taken as a whole, or (ii) prevent, burden or
impair the consummation of the transactions contemplated by this
Agreement (collectively a “ Material Adverse Effect
”). The outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company or
another Subsidiary free and clear of all liens, encumbrances and
equities and claims except as otherwise described in the
Registration Statement, the General Disclosure Package and the
Prospectus; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligations into shares of capital stock or ownership interests
in each of the Subsidiaries are outstanding.
(d) The
outstanding shares of Common Stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company
have been duly authorized and when issued and paid for as
contemplated herein will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof. Neither
the filing of the Registration Statement nor the offering or sale
of the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for
or relating to the registration of any shares of Common
Stock.
(e) The
Company has authorized capital stock as set forth in the
Registration Statement and the Prospectus (and any similar section
or information contained in the General Disclosure Package). All of
the Shares conform to the description thereof contained in the
Registration Statement, the General Disclosure Package and the
Prospectus. The form of certificates for the Shares conforms to the
corporate law of the jurisdiction of the Company’s
incorporation.
(f) The
Commission has not issued an order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus
or the Prospectus relating to the proposed offering of the Shares,
and no proceeding for that purpose or pursuant to Section 8A
of the Act has been instituted or, to the Company’s
knowledge, threatened by the Commission. The Registration Statement
contains, and the Prospectus and any amendments or supplements
thereto will contain, all statements which are required to be
stated therein by, and will conform to, the requirements of the Act
and the Rules and Regulations. The documents incorporated, or to be
incorporated, by reference in the Prospectus, at the time filed
with the Commission conformed or will conform, in all material
respects to the requirements of the Securities Exchange Act of 1934
(“ Exchange Act ”) or the Act, as applicable,
and the rules and regulations of the Commission thereunder. The
Registration Statement and any amendment thereto do not contain,
and will
3
not contain,
any untrue statement of a material fact and do not omit, and will
not omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus and any amendments and supplements thereto do not
contain, and will not contain, any untrue statement of a material
fact; and do not omit, and will not omit, to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information is that described in
Section 13 herein.
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Shares or until any earlier date that the Company
notified or notifies the Underwriters as described in the next
sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein that has
not been superseded or modified. If at any time following issuance
of an Issuer Free Writing Prospectus, there occurred or occurs an
event or development as a result of which such Issuer Free Writing
Prospectus included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances, not misleading, the Company has notified or will
notify promptly the Underwriters so that any use of such Issuer
Free Writing Prospectus may cease until it is amended or
supplemented. The foregoing two sentences do not apply to
statements or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representative
specifically for use therein.
(h) The
Company has not, directly or indirectly, distributed and will not
distribute any offering material in connection with the offering
and sale of the Shares other than any Preliminary Prospectus, the
Prospectus, any Permitted Free Writing Prospectus (defined below)
and other materials, if any, permitted under the Act and consistent
with Section 4(b)(ii) below. The Company will file with
the Commission all Issuer Free Writing Prospectuses in the time
required under Rule 433(d) under the Act. The Company has satisfied
or will satisfy the conditions in Rule 433 under the Act to avoid a
requirement to file with the Commission any electronic road
show.
(i)
(i) At the time of filing the Registration Statement and
(ii) as of the date hereof (with such date being used as the
determination date for purposes of this clause (ii)), the Company
was not and is not an “ineligible issuer” (as defined
in Rule 405 under the Act, without taking into account any
determination by the Commission pursuant to Rule 405 under the
Act that it is not necessary that the Company be considered an
ineligible issuer), including, without limitation, for purposes of
Rules 164 and 433 under the Act with respect to the offering
of the Shares as contemplated by the Registration
Statement.
(j) The
consolidated financial statements of the Company and each of its
Subsidiaries, together with related notes and schedules as set
forth in the Registration Statement, the General Disclosure Package
and the Prospectus, present fairly in all material respects the
financial position and the results of operations and cash flows of
the Company and the consolidated Subsidiaries, at the indicated
dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with generally
accepted principles of accounting (“ GAAP ”),
consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair
presentation in all material respects of results for such periods
have been made. The summary and selected consolidated financial and
statistical data included or incorporated by reference in the
Registration Statement, the General Disclosure Package
and
4
the Prospectus
presents fairly in all material respects the information shown
therein and such data has been compiled on a basis consistent with
the financial statements presented therein and the books and
records of the Company. All disclosures contained in the
Registration Statement, the General Disclosure Package and the
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the Rules and Regulations) comply with
Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable. The
Company and each of its Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest
entities” within the meaning of Financial Accounting
Standards Board Interpretation No. 46), not disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus. There are no financial statements (historical or pro
forma) that are required to be included in the Registration
Statement, the General Disclosure Package or the Prospectus that
are not included as required.
(k) BDO
Seidman, LLP, who have certified certain of the financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement, the General Disclosure
Package and the Prospectus, is an independent registered public
accounting firm with respect to the Company and each of its
Subsidiaries within the meaning of the Act and the applicable Rules
and Regulations and the Public Company Accounting Oversight Board
(United States) (the “ PCAOB ”).
(l) Except
as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, neither the Company nor any of its
Subsidiaries is aware of (i) any material weakness in its
internal control over financial reporting or (ii) change in
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting.
(m) Solely
to the extent that the Sarbanes-Oxley Act of 2002, as amended, and
the rules and regulations promulgated by the Commission and the
Nasdaq Global Select Market thereunder (the “
Sarbanes-Oxley Act ”) has been applicable to the
Company, there is and has been no failure on the part of the
Company to comply in all material respects with the Sarbanes-Oxley
Act. The Company has taken all necessary actions to ensure that it
is in compliance in all material respects with the Sarbanes-Oxley
Act.
(n) There
is no action, suit, claim or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of
its Subsidiaries before any court or administrative agency or
otherwise which if determined adversely to the Company or any of
its Subsidiaries would have, individually or in the aggregate, a
Material Adverse Effect, except as set forth in the Registration
Statement, the General Disclosure Package and the
Prospectus.
(o) The
Company and each of its Subsidiaries have good and marketable title
to all of the properties and assets reflected in the consolidated
financial statements hereinabove described or described in the
Registration Statement, the General Disclosure Package and the
Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial
statements or described in the Registration Statement, the General
Disclosure Package and the Prospectus or which are not material in
amount or would not materially interfere with the use to be made of
such properties or assets. The Company and each of its Subsidiaries
occupy their leased properties under valid and binding leases
conforming in all material respects to the description thereof set
forth in the Registration Statement, the General Disclosure Package
and the Prospectus.
(p) The
Company and each of its Subsidiaries have filed all Federal, State,
local and foreign tax returns which have been required to be filed
and have paid all taxes indicated by such returns and all
assessments received by them or any of them to the extent that such
taxes have become due and are not
5
being contested
in good faith and for which an adequate reserve for accrual has
been established in accordance with GAAP. All tax liabilities have
been adequately provided for in the financial statements of the
Company, and the Company does not know of any actual or proposed
additional material tax assessments.
(q) Since
the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented, there has not
been any event that has resulted in a Material Adverse Effect,
whether or not occurring in the ordinary course of business, and
there has not been any material transaction entered into or any
material transaction that is probable of being entered into by the
Company or any of its Subsidiaries, other than transactions in the
ordinary course of business and changes and transactions described
in the Registration Statement, the General Disclosure Package and
the Prospectus, as each may be amended or supplemented. The Company
and each of its Subsidiaries have no material contingent
obligations which are not disclosed in the Company’s
financial statements which are included in the Registration
Statement, the General Disclosure Package and the
Prospectus.
(r) Neither
the Company nor any of its Subsidiaries is or with the giving of
notice or lapse of time or both, will be, (i) in violation of
its certificate or articles of incorporation, by-laws, certificate
of formation, limited liability agreement, partnership agreement or
other organizational documents or (ii) in violation of or in
default under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it, or
any of its properties, is bound and, solely with respect to this
clause (ii), which violation or default would have a Material
Adverse Effect. The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of their respective properties is bound, or of
the certificate or articles of incorporation or by-laws of the
Company or any law, order, rule or regulation, judgment, order,
writ or decree applicable to the Company or any of its Subsidiaries
of any court or of any government, regulatory body or
administrative agency or other governmental body having
jurisdiction, except to the extent that such conflict, breach or
default would not have a Material Adverse Effect.
(s) There
is no document, contract or other agreement required to be
described in the Registration Statement or Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required by the Act or the Rules and
Regulations. Each description of a contract, document or other
agreement in the Registration Statement and the Prospectus
accurately reflects in all material respects the terms of the
underlying contract, document or other agreement. Each contract,
document or other agreement described in the Registration Statement
and Prospectus or listed in the exhibits to the Registration
Statement or incorporated by reference that has not otherwise been
terminated or expired in accordance with its terms is in full force
and effect and is valid and enforceable against the Company in
accordance with its terms (except as rights to indemnity and
contribution thereunder may be limited by federal or state
securities laws and matter of public policy and except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and by general
equitable principle). Neither the Company nor any of its
Subsidiaries nor, to the Company’s knowledge, any other party
is in default in the observance or performance of any term or
obligation to be performed by it under any agreement or instrument
to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or their respective
properties or businesses may be bound, and no event has occurred
which with notice or lapse of time or both would constitute such a
default, in any such case in which the default or event,
individually or in the aggregate, would have a Material Adverse
Effect.
6
(t) The
execution and delivery of, and the performance by the Company of
its obligations under, this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and this Agreement has been duly executed and delivered by
the Company.
(u) Each
approval, consent, order, authorization, designation, declaration
or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of
the transactions herein contemplated (except such additional steps
as may be required by the Commission, the Financial Industry
Regulatory Authority (“ FINRA ”) or such
additional steps as may be necessary to qualify the Shares for
public offering by the Underwriters under state securities or Blue
Sky laws) has been obtained or made and is in full force and
effect.
(v) Except
as described in the Registration Statement or in any document
incorporated by reference therein, (i) the Company and each of
its Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the
conduct of their businesses in the manner in which they are being
conducted; (ii) the Company and each of its Subsidiaries own
or possess the right to use all patents, patent rights, trademarks,
trade names, service marks, service names, copyrights, license
rights, know-how (including trade secrets and other unpatented and
unpatentable proprietary or confidential information, systems or
procedures) and other intellectual property rights (“
Intellectual Property ”) necessary to carry on their
business in all material respects in the manner in which it is
being conducted; and (iii) to the Company’s knowledge,
neither the Company nor any of its Subsidiaries has infringed, and
none of the Company or any of its Subsidiaries have received notice
of conflict with, any Intellectual Property of any other person or
entity except in the case of clause (iii) as would not have a
Material Adverse Effect. The Company has taken all steps reasonably
necessary to secure ownership interests in Intellectual Property
created for it by any contractors. There are no outstanding
options, licenses or agreements of any kind relating to the
Intellectual Property of the Company that are required to be
described in the Registration Statement, the General Disclosure
Package and the Prospectus and are not described therein in all
material respects. The Company is not a party to or bound by any
options, licenses or agreements with respect to the Intellectual
Property of any other person or entity that are required to be set
forth in the Prospectus and are not described therein in all
material respects. None of the technology employed by the Company
has been obtained or is being used by the Company in violation of
any contractual obligation binding on the Company or any of its
officers, directors or employees or otherwise in violation of the
rights of any persons; the Company has not received any written or
oral communications alleging that the company has violated,
infringed or conflicted with, or, by conducting its business as set
forth in the Registration Statement, the General Disclosure Package
and the Prospectus, would violate, infringe or conflict with, any
of the Intellectual Property of any other person or entity. The
Company knows of no infringement by others of Intellectual Property
owned by or licensed to the Company.
(w) Neither
the Company, nor to the Company’s knowledge, any of its
affiliates, has taken or may take, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which might reasonably be expected to constitute, the stabilization
or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Shares. The Company
acknowledges that the Underwriters may engage in passive market
making transactions in the Shares on the Nasdaq Global Select
Market in accordance with Regulation M under the Exchange
Act.
(x) Neither
the Company nor any of its Subsidiaries is or, after giving effect
to the offering and sale of the Shares contemplated hereunder and
the application of the net proceeds from such sale as described in
the Prospectus, will be an “investment company” within
the meaning of such term under the
7
Investment
Company Act of 1940 as amended (the “ 1940 Act
”), and the rules and regulations of the Commission
thereunder.
(y) The
Company and each of its Subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(z) The
Company has established and maintains “disclosure controls
and procedures” (as defined in Rules 13a-14(c) and
15d-14(c) under the Exchange Act); the Company’s
“disclosure controls and procedures” are reasonably
designed to ensure that all information (both financial and
non-financial) required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the rules and regulations of the Exchange Act,
and that all such information is accumulated and communicated to
the Company’s management as appropriate to allow timely
decisions regarding required disclosure and to make the
certifications of the Chief Executive Officer and Chief Financial
Officer of the Company required under the Exchange Act with respect
to such reports.
(aa) The
statistical, industry-related and market-related data included in
the Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived from sources which the Company
reasonably and in good faith believes are reliable and accurate,
and such data agree with the sources from which they are
derived.
(bb) The
operations of the Company and each of its Subsidiaries are and have
been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations
thereunder (collectively, the “ Money Laundering Laws
”), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any or its Subsidiaries with respect to
the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened.
(cc) The
Company and each of its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company
believes is adequate for the conduct of their respective businesses
and the value of their respective properties and as is customary
for companies engaged in similar businesses.
(dd) The
Company and each of its Subsidiaries is in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the
Company and each of its Subsidiaries would have any liability; the
Company and each of its Subsidiaries has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the “ Code
”); and each “pension plan” for which the Company
or any of its Subsidiaries would have any lia
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